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Oliver v. Scripps Mesa Developer Office

United States District Court, S.D. California

July 7, 2017

CHRISTOPHER OLIVER, CDCR #BA-2054, Plaintiff,
v.
SCRIPPS MESA DEVELOPER OFFICE, Defendant.

          ORDER 1) GRANTING PLAINTIFF LEAVE TO PROCEED IN FORMA PAUPERIS [ECF NO. 2] AND DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(II)

          Hon. Anthony J. Battaglia United States District Judge.

         CHRISTOPHER OLIVER (“Plaintiff”), proceeding pro se and while he was incarcerated at California Institution for Men (“CIM”), in Chino, California, filed this civil rights action pursuant to 42 U.S.C. § 1983 (ECF No. 1). He did not prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a), but instead, filed a Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 2). He then filed a Notice of Change of Address indicating that he was no longer incarcerated at CIM, and instead resided on Boston Avenue, in San Diego. (ECF No. 3).

         Because the Court presumed from Plaintiff's change of address that he was no longer a prisoner in custody of the California Department of Corrections and Rehabilitation (“CDCR”), on June 16, 2017, it denied his Motion to Proceed IFP without prejudice, and directed him to file a supplemental IFP Motion to account for his “current post-release income, assets and expenses” in order to proceed. (ECF No. 4 at 7-8.)

         In lieu of a supplemental IFP Motion, on June 27, 2017, Plaintiff filed a letter to the Clerk of Court (ECF No. 6), explaining that he is, in fact, “still incarcerated, ” but has been transferred to a “Male Community Re-Entry Program under CDCR, ” and that the trust account statement attached to his original IFP Motion (ECF No. 2) still accurately accounts for all the assets he currently possesses. (Id. at 1.) Plaintiff also attaches a letter from a counselor at “Correctional Alternatives, LLP, ” located at 2727 Boston Avenue, San Diego, confirming that Plaintiff is a participant in the “Male Community Reentry Program” and will remain confined there until August 7, 2017. (Id. at 2.)[1]

         Based on Plaintiff's letter, the Court will now reconsider his previously filed Motion to Proceed IFP (ECF No. 2).

         I. Motion to Proceed IFP

         All 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.[2] 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, if the Plaintiff is a prisoner[3] at the time of filing, even if he is granted leave to proceed IFP, he remains obligated to pay the entire filing 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).

         Section 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.

         In support of his IFP original Motion, Plaintiff submitted a copy of his CDCR Inmate Statement Report showing his available balance and trust account activity at CIM. See ECF No. 2 at 3-4; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This statement shows that while Plaintiff carried monthly balances ranging from $474.34 to $67.02 from September through November 2016, he had an available balance of zero at the time of filing. See ECF No. 2 at 3. Based on this accounting, the Court GRANTS Plaintiff leave to proceed IFP, and will assess no initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). 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 will further direct the Secretary of the 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.

         II. Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2)

         A. Standard of Review

         If a prisoner's complaint “seeks redress from a governmental entity or officer or employee of a governmental entity, ” the Court “shall review” the pleading “as soon as practicable after docketing, ” and “dismiss the complaint, or any portion of the complaint, if [it] . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(a), (b)(1); Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014). Here, Plaintiff alleges violations of his “due process rights” under the Fourth and Fourteenth Amendments, see ECF No. 1 at 2, 8, but he seeks redress from “Scripps Mesa Developer Office, ” which is alleged to be the property management company that “[gave] up the keys to [a] residence” he shared with his mother on March 25, 2016, to an unidentified probation officer “without probable cause.” Id. Plaintiff does not seek redress from or name governmental actors as Defendants. Id. at 1-2. Therefore, § 1915A(a)'s screening provisions do not apply. See Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016) (“Section 1915A mandates early review … for all complaints ‘in which a prisoner seeks relief from a governmental entity…”) (quoting § 1915A(a)); see also Thompson v. Hicks, 213 Fed.Appx. 939, 2007 WL 106785 at *3 (11th Cir. 2007) (noting that because a private defendant was not a “governmental entity” as described in § 1915A, prisoner's complaint as to that defendant was not subject to dismissal under § 1915A).

         Because Plaintiff is proceeding IFP, however, his Complaint is still subject to a sua sponte review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune from such relief, ” regardless of whether he seeks redress from a “governmental entity.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S.Ct. 1759, 1763 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if the court determines that-(A) the allegation of poverty is untrue; or (B) the action or appeal-(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.”).

         “The 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 ...


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