United States District Court, S.D. California
1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [DOC.
NO. 9] AND DISMISSING CIVIL ACTION FOR FAILING TO STATE A
CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND §
MICHAEL M. ANELLO United States District Judge
JOHN ADAMS (“Plaintiff”), proceeding pro se and
currently incarcerated at the California Health Care Facility
(“CHCF”) in Stockton, California, filed this
civil action pursuant to 42 U.S.C. § 1983 in the
Northern District of California in December 2016 (Doc. No.
Plaintiff's Complaint raises claims regarding to property
that was seized during his 1988 arrest and subsequent
criminal prosecution in San Diego Superior Court, and because
the sole Defendant is alleged to have been employed by the
San Diego County Sheriff's Department, United States
Magistrate Judge Nandor J. Vadas found the case was filed in
the improper venue, and transferred it to the Southern
District of California pursuant to 28 U.S.C. § 1391(b)
and § 1406(a) (Doc. No. 11). Judge Vadas did not rule on
Plaintiff's pending Motion to Proceed In Forma Pauperis
(Doc. No. 9) prior to transfer; nor did he conduct a
preliminary screening of Plaintiff's Complaint pursuant
to 28 U.S.C. § 1915(e)(2) and § 1915A.
Motion to Proceed In Forma Pauperis
parties instituting any civil action, suit or proceeding in a
district court of the United States, except an application
for writ of habeas corpus, must pay a filing fee of
$400. See 28 U.S.C. § 1914(a). The
action may proceed despite a plaintiff's failure to
prepay the entire fee only if he is granted leave to proceed
IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v.
Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.
1999). However, a prisoner granted leave to proceed IFP
remains obligated to pay the entire fee in
“increments” or “installments, ”
Bruce v. Samuels, __ U.S. __, 136 S.Ct. 627, 629
(2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th
Cir. 2015), and regardless of whether his action is
ultimately dismissed. See 28 U.S.C. §
1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d
844, 847 (9th Cir. 2002).
1915(a)(2) requires prisoners seeking leave to proceed IFP to
submit a “certified copy of the trust fund account
statement (or institutional equivalent) for ... the 6-month
period immediately preceding the filing of the
complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.
King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the
certified trust account statement, the Court assesses an
initial payment of 20% of (a) the average monthly deposits in
the account for the past six months, or (b) the average
monthly balance in the account for the past six months,
whichever is greater, unless the prisoner has no assets.
See 28 U.S.C. § 1915(b)(1); 28 U.S.C. §
1915(b)(4). The institution having custody of the prisoner
then collects subsequent payments, assessed at 20% of the
preceding month's income, in any month in which his
account exceeds $10, and forwards those payments to the Court
until the entire filing fee is paid. See 28 U.S.C.
§ 1915(b)(2); Bruce, 136 S.Ct. at 629.
support of his IFP Motion, Plaintiff has submitted a copy of
his CDCR Inmate Statement Report as well as a prison
certificate certified by a trust account official at CHCF.
See Doc. No. 9 at 5-8; 28 U.S.C. § 1915(a)(2);
S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119.
These statements show that while Plaintiff sustained an
average monthly balance of $11.67, he had no monthly deposits
to his account over the 6-month period immediately preceding
the filing of his Complaint, he had an available balance of
zero at the time of filing. See Doc. No. 9 at 5, 7.
Thus, the Court assesses Plaintiff's initial partial
filing fee to be $2.33 pursuant to 28 U.S.C. §
1915(b)(1), but acknowledges he may be unable to pay even
that minimal initial fee at this time. See 28 U.S.C.
§ 1915(b)(4) (providing that “[i]n no event shall
a prisoner be prohibited from bringing a civil action or
appealing a civil action or criminal judgment for the reason
that the prisoner has no assets and no means by which to pay
the initial partial filing fee.”); Bruce, 136
S.Ct. at 630; Taylor, 281 F.3d at 850 (finding that
28 U.S.C. § 1915(b)(4) acts as a
“safety-valve” preventing dismissal of a
prisoner's IFP case based solely on a “failure to
pay ... due to the lack of funds available to him when
payment is ordered.”).
the Court GRANTS Plaintiff's Motion to
Proceed IFP (Doc No. 9), declines to exact any initial filing
fee because his prison certificate indicates he may have
“no means to pay it, ” Bruce, 136 S.Ct.
at 629, and directs the Secretary of the California
Department of Corrections and Rehabilitation
(“CDCR”), or his designee, to instead collect the
entire $350 balance of the filing fees required by 28 U.S.C.
§ 1914 and forward them to the Clerk of the Court
pursuant to the installment payment provisions set forth in
28 U.S.C. § 1915(b)(1). See id.
Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2)
and § 1915A
Standard of Review
Plaintiff is a prisoner and is proceeding IFP, his Complaint
requires a pre-answer screening pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A(b). Under these statutes, the
Court must sua sponte dismiss a prisoner's IFP complaint,
or any portion of it, which is frivolous, malicious, fails to
state a claim, or seeks damages from defendants who are
immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27
(9th Cir. 2000) (en banc) (discussing 28 U.S.C. §
1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004
(9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
“The purpose of [screening] is ‘to ensure that
the targets of frivolous or malicious suits need not bear the
expense of responding.'” Nordstrom v.
Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012); see also Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (noting that screening
pursuant to § 1915A “incorporates the familiar
standard applied in the context of failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6)”). Rule
12(b)(6) requires a complaint “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted); Wilhelm, 680 F.3d at 1121. Detailed
factual allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Determining whether a
complaint states a plausible claim for relief [is] ... a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. The “mere possibility of misconduct”
or “unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
contends that Defendant Leroy Garcia, a Sheriff employed by
the County of San Diego, conducted an “illegal”
search and seizure of his personal property without a
warrant, participated in his “false arrest, ”
fabricated and/or “orchestrated” false,
defamatory, and misleading evidence against him, and
“vandalized” his property in Ramona, California,
while acting “under color of authority” “on
or about November 15, 1988.” (Doc. No. 1 at 3, 5-7.)
Plaintiff seeks “five million dollars in new money,