United States District Court, S.D. California
ORDER (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS AND (2)DIRECTING U.S. MARSHAL TO EFFECT SERVICE
PURSUANT TO 28 U.S.C. § 1915(D) AND FED. R. CIV. P.
4(C)(3) (ECF NO. 2)
Janis L. Sammartino United States District Judge
Wilson (“Plaintiff”) is currently incarcerated at
the California Medical Facility (“CMF”) in
Vacaville, California. He is proceeding pro se, and has filed
a civil Complaint pursuant to 42 U.S.C. § 1983 (ECF No.
had not prepaid the $400 civil filing fee required to
commence a civil action pursuant to 28 U.S.C. § 1914(a);
instead, he has filed a Motion to Proceed In Forma
Pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915(a) (ECF No. 2).
claims he suffers from a “psychiatric disability”
for which he is currently receiving care “within the
[California Department of of Corrections and Rehabilitation]
[(‘]CDCR[')].” (Compl. 5.) Earlier, while he
was “an inmate under [the] care and control of the San
Diego County Sheriff's Department, ” and housed at
the San Diego Central Jail (“SDCJ”) on April 5,
2016, however, Plaintiff alleges Defendants Gardiner and Joe
Doe #1, both San Diego County Sheriff's Department
deputies assigned to SDCJ, used excessive force against him
with “callous and malicious intent” to both harm
and humiliate him. (Id. at 3-14.) Specifically,
Plaintiff claims Gardiner became “infuriated”
after Plaintiff asked for soup, at which point Gardiner
grabbed, punched, pushed, kicked, and struck him “in
the eye, neck, and upper torso, ” and then escorted him
“through the Jail with a severely torn shirt and no
pants on, ” and into a “filthy” medical
cell. (Id. at 7-9.)
two hours in the cell, “half naked in distress, ”
Plaintiff claims he asked Defendant Deputy Joe Doe #1 for
clothes and supplies, and stated “I['d] rather be
dead than live like this.” (Id. at 9-10.) Joe
Doe #1 then ordered him to “cuff up”-claiming
Plaintiff had threatened suicide-“pointed the jagged
edge of the . . . cuffs in [his] right hand, ” and
“immediately” pepper sprayed him twice, after he
asked for a sergeant. (Id. at 10-11.)
further contends Defendant Poiter, a San Diego County
Sergeant on “second watch, ” arrived a
“moment later, ” commented on the amount of
pepper spray dispensed, but “failed to properly
document the incidents.” (Id. at 4, 11.)
Plaintiff was then “taken straight to suicide watch,
” “left in a rubber cell naked and burning,
” and released “within 24 hours” after
being assessed “by the psych doctor” as
non-suicidal. (Id. at 12.)
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
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 who
is 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.
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 CDCR
Inmate Statement, and a Prison Certificate authorized by an
accounting specialist at CMF attesting to his balances and
deposits over the six-month period preceding the filing of
his Complaint. See ECF No. 2 at 4, 6; 28 U.S.C.
§ 1915(a)(2); S.D. Cal. Civ. L.R. 3.2; Andrews,
398 F.3d at 1119. These statements show that Plaintiff has
carried no monthly average and has had no money deposited to
his account for the six-month period preceding the filing of
this action. Consequently, his available balance at the time
of filing was zero. (See ECF No. 2 at 4); see
also 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 (ECF
No. 2), declines to “exact” any initial filing
fee because his trust account statement shows he “has
no means to pay it, ” Bruce, 136 S.Ct. at 629,
and directs the Secretary of CDCR to 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.
PURSUANT TO 28 U.S.C. §§ ...