United States District Court, S.D. California
GARY N. JOHNSON, CDCR #E-06004, Plaintiff,
K. WOODS, Correctional Officer; E. LAZAMANA, Correctional Officer; D. MARTINEZ, Correctional Officer; DANIEL PARAMO, Warden, Defendants.
William Q. Hayes United States District Court
JOHNSON (“Plaintiff”), incarcerated at Richard J.
Donovan Correctional Facility (“RJD”), in San
Diego, California, is proceeding pro se in this case with a
civil rights Complaint filed pursuant to 42 U.S.C. §
1983 (ECF No. 1).
has not prepaid the $400 civil filing fee required by 28
U.S.C. § 1914(a); instead, he has filed a Motion to
Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (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, a prisoner granted leave to proceed IFP
remains obligated to pay the entire fee in
“increments” or “installments, ”
Bruce v. Samuels, 136 S.Ct. 627, 629 (2016),
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 Motion to Proceed IFP, Plaintiff has submitted
a copy of his California Department of Corrections and
Rehabilitation (“CDCR”) Inmate Statement Report
(ECF No. 2 at 3-7), together with a prison certificate
attesting to his trust account activity. Id. at 2;
see also 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 carried no average monthly
balance, has had no monthly deposits to his account over the
six-month period immediately preceding the filing of his
Complaint, and, consequently, had no available balance on the
books at the time of filing. See ECF No. 2 at 2, 4.
Based on this accounting, no initial partial filing fee is
assessed. See 28 U.S.C. § 1915(b)(4) (“In
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.”).
the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF
No. 2); declines to exact any initial filing fee because his
prison certificate indicates he has “no means to pay
it, ” Bruce, 136 S.Ct. at 629; and directs 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.
Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) &
Standard of Review
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 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); Rhodes v. Robinson, 621 F.3d 1002,
1004 (9th Cir. 2010). “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). 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.” 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
is 68 and confined to wheelchair. See ECF No. 1 at
26. On September 14, 2016, he was released from his housing
unit at RJD and directed to report to the “Plaza Gate
for transport to an outside medical procedure.”
Id. at 4. Correctional Officers E. Laxamana and D.
Martinez escorted him to the B Yard work change area, which
was “overseen by Correctional Officer K. Woods.”
Id. Plaintiff inquired twice as to the reason for
his transport, seeking confirmation that it was for purposes
of “admittance for urological surgery, ” but
Laxamana said it was not and told Plaintiff to “hurry
up and get dressed.” Id. Plaintiff claims that
“immediately after, ” Woods “for some
unknown reason, ” rapidly approached, ordered Laxamana
and Martinez to “Get Out” in a “loud and
frightening manner, ” and “pushed and
backed” Plaintiff's wheelchair up against some
“wooden clothing exchange boxes.” Id.
There, Plaintiff contends Woods continued to yell,
“lost control[, ] and was enraged.” Id.
at 5. Plaintiff claims Woods exclaimed, “I Don't
Believe in this Manby Pamby [sic] Stuff. I'm Old
School!” and then pushed Plaintiff's head against
the “boxes attached to the wall and floor” and
choked him until ...