United States District Court, S.D. California
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS PURSUANT TO 28 U.S.C. § 1915(A) [DOC. NO. 2];
AND (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(II)
ANTHONY J. BATTAGLIA, UNITED STATES DISTRICT JUDGE
James (“Plaintiff”), a prisoner incarcerated at
California State Prison - Los Angeles County, located in
Lancaster, California, and proceeding pro se, has filed a
civil complaint pursuant to 42 U.S.C. § 1983.
See Doc. No. 1 at 1. Plaintiff claims his
constitutional rights were violated when he was previously
housed in the San Diego County Jail from 2014 to 2015.
did not prepay the civil filing fees 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) (Doc. No. 2).
Plaintiff's IFP Motion
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, ___ 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 motion, Plaintiff has submitted a
certified copy of his prison trust account statements, as
well as a prison certificate, verified by an accounting
officer, pursuant to 28 U.S.C. § 1915(a)(2) and S.D.
Cal. CivLR 3.2. See Doc. No. 2 at 4-8;
Andrews, 398 F.3d at 1119. These statements shows
that while Plaintiff had an average monthly deposit of $31.09
and an average monthly balance of 24.93 in his trust account
during the 6-month period preceding the filing of his
Complaint, he only had an available balance of zero at the
time of filing. Therefore, the Court assesses Plaintiff's
initial partial filing fee to be $6.22 pursuant to 28 U.S.C.
§ 1915(b)(1). However, the Court also notes Plaintiff
may be unable to pay that initial fee at this time.
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,
declines to “exact” the initial $6.22 initial
filing fee because his prison certificate 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”), 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).
Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B)
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). As noted below, Plaintiff alleges violations of his
“federal constitutional rights, ” see
Doc. No. 1 at 1, 5, but he seeks redress from private
citizens, an attorney, his former home owners'
association, and a property management company, none of whom
are alleged to be governmental actors. Id. at 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
claim.” Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012).
survive a motion to dismiss, the complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Detailed 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)). “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”
falls short of meeting this plausibility standard.
Id.; see also Moss v. U.S. Secret Service,
572 F.3d 962, 969 (9th Cir. 2009).
there are well-pleaded factual allegations, a court should
assume their veracity, and then determine whether they
plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679; see also Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen
determining whether a complaint states a claim, a court must
accept as true all allegations of material fact and must
construe those facts in the light most favorable to the
while the court “ha[s] an obligation where the
petitioner is pro se, particularly in civil rights cases, to
construe the pleadings liberally and to afford the petitioner
the benefit of any doubt, ” Hebbe v. Pliler,
627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz
v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it
may not “supply essential elements of claims that were