United States District Court, S.D. California
1) GRANTING MOTIONS TO PROCEED IFP PURSUANT TO 28
U.S.C. § 1915(A) [ECF NOS. 8, 13]; 2) DENYING MOTION FOR
RECONSIDERATION AS MOOT; AND 3) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §
1915(E)(2) AND § 1915A(B)
Cathy Ann Bencivengo United States District Judge
Guillen (“Plaintiff”), is a prisoner at Salinas
Valley State Prison (“SVSP”) in Soledad,
California. He initially filed a civil rights Complaint
pursuant to 42 U.S.C. § 1983 (ECF No. 1) in the Northern
District of California. However, because the claims he raised
in his Complaint arose while he was incarcerated at the
Richard J. Donovan Correctional Facility (“RJD”),
the matter was transferred to the Southern District of
California on May 5, 2017. (ECF No. 4.)
this Court dismissed Plaintiff's entire action because he
had failed to file a Motion to Proceed In Forma Pauperis
(“IFP”) or pay the initial civil filing fee. (ECF
No. 7.) Plaintiff has now filed two Motions to Proceed IFP
which has reopened this matter. (ECF Nos. 8, 13). In
addition, Plaintiff has file a “Motion for
Reconsideration and Reopening of Case File.” (ECF No.
10.) Because Plaintiff has filed the two IFP Motions, the
Court has reopened the matter and thus, DENIES
Plaintiff's Motion for Reconsideration as moot.
Plaintiff's IFP Motions
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). However,
prisoners who are granted leave to proceed IFP remain
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 their 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) also 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 Motions, Plaintiff has submitted CDCR
Inmate Statement Report dated June 3, 2017, together with a
prison certificate completed by a SVSP accounting official
attesting to his trust account activity and balances for the
six-months preceding the filing of his Complaint.
See ECF No. 8 at 6-8; 28 U.S.C. § 1915(a)(2);
S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119.
These statements show that Plaintiff had an average monthly
balance of $22.77, and average monthly deposits of $52.50 to
his account over the 6-month period immediately preceding the
filing of his Complaint, as well as an available balance of
$49.00 at the time of filing. See ECF No. 8 at 7.
Based on this financial information, the Court GRANTS
Plaintiff's Motions to Proceed IFP (ECF No. 8, 13), and
assesses his initial partial filing fee to be $10.50 pursuant
to 28 U.S.C. § 1915(b)(1).
the Court will direct the Secretary of the California
Department of Corrections and Rehabilitation
(“CDCR”), or his designee, to collect this
initial fee only if sufficient funds are available in
Plaintiff's account at the time this Order is executed.
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. The remaining balance of
the $350 total fee owed in this case must be collected and
forwarded to the Clerk of the Court pursuant to 28 U.S.C.
Sua Sponte Screening Pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)
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) (quoting
Wheeler v. Wexford Health Sources, Inc., 689 F.3d
680, 681 (7th Cir. 2012)).
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 to “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.
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).
Plaintiff was previously housed at RJD, he was charged with a
“Rules Violation Report” for the act of
“battery on an inmate with a weapon resulting in
serious bodily injury.” (Compl. at 3.) In August of
2015, Defendant Martinez, as the “Senior Hearing
Officer, ” conducted a disciplinary hearing based on
this charge. (Id. at 5.) Plaintiff alleges Defendant
Martinez allowed the “inmate and alleged victim”
to provide written testimony against the objections of
Plaintiff. (Id.) Plaintiff claims Defendant Martinez
stated during the hearing that he reviewed Plaintiff's
file and stated “you are a fighter, ” noted that
Plaintiff is serving a sentence of life without the
possibility of parole, ” and concluded that “I