United States District Court, S.D. California
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. §
Anthony J. Battaglia United States District Judge.
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).
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.)
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
on Plaintiff's letter, the Court will now reconsider his
previously filed Motion to Proceed IFP (ECF No. 2).
Motion to Proceed IFP
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, if the Plaintiff is a prisoner 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).
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 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.
Sua Sponte Screening pursuant to 28 U.S.C. §
Standard of Review
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).
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.”).
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