United States District Court, S.D. California
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS [ECF NO. 2]; (2) DENYING MOTION FOR APPOINTMENT OF
COUNSEL; (3) DENYING MOTION FOR PRELIMINARY INJUNCTION [ECF
NO. 3]; AND (4) DIRECTING U.S. MARSHAL TO EFFECT SERVICE
PURSUANT TO 28 U.S.C. § 1915(D) AND FED. R. CIV. P.
CATHY ANN BENCIVENGO, UNITED STATES DISTRICT JUDGE
Jackson (Plaintiff) is currently incarcerated at California
State Prison -Sacramento located in Represa, California. He
is proceeding pro se, and has filed a civil rights Complaint
pursuant to 42 U.S.C. § 1983 (ECF No. 1). Before the
Court could conduct the required sua sponte screening,
Plaintiff filed a First Amended Complaint (“FAC”)
which is the operative pleading. (ECF No. 11) Plaintiff
claims his constitutional rights were violated when he was
previously housed at the Richard J. Donovan Correctional
Facility (“RJD”). (Id. at 1.)
did not prepay the $400 civil filing fee required by 28
U.S.C. § 1914(a) at the time of filing; instead, he has
filed a Motion to Proceed In Forma Pauperis (IFP) pursuant to
28 U.S.C. § 1915(a) (ECF No. 2), along with a Motion to
Appoint Counsel (ECF No. 8) and a Motion for Temporary
Restraining Order and Preliminary Injunction. (ECF No. 13).
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 who is granted leave to proceed
IFP remains obligated to pay the entire fee in
“increments” or “installments, ”
Bruce v. Samuels, ___ S.Ct. ____, 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 and a Prison Certificate
signed by a RJD accounting officer attesting to his balances
and deposits over the 6-month period preceding the filing of
his Complaint. See ECF No. 3 at 1-3; 28 U.S.C.
§ 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398
F.3d at 1119. These statements show that Plaintiff has had no
money in his trust account for the 6-months preceding the
filing of this action, and that he had a zero balance at the
time of filing. See ECF No. 3 at 1-3. 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 (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 the California Department of
Corrections and Rehabilitation (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.
Screening of Complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)
Complaint is subject to a sua sponte screening
pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).
Under these statutes, the Court must 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 “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).
currently pleaded, the Court finds that while Plaintiff has
not shown, for the reasons discussed below, that he is
entitled to preliminary injunctive relief, his Complaint
nevertheless contains factual content sufficient to survive
the “low threshold” for proceeding past the sua
sponte screening required by 28 U.S.C. §§
1915(e)(2) and 1915A(b), because it alleges Eighth and
Fourteenth Amendment claims which are plausible on its face.
See Wilhelm, 680 F.3d at 1123; Iqbal, 556
U.S. at 678.
the Court will direct the U.S. Marshal to effect service upon
the named Defendants on Plaintiff's behalf. See
28 U.S.C. § 1915(d) (“The officers of the court
shall issue and serve all process, and perform all duties in
[IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (“[T]he
court may order that service be made by a United States
marshal or deputy ...