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Johnson v. Woods

United States District Court, S.D. California

November 3, 2017

GARY N. JOHNSON, CDCR #E-06004, Plaintiff,
v.
K. WOODS, Correctional Officer; E. LAZAMANA, Correctional Officer; D. MARTINEZ, Correctional Officer; DANIEL PARAMO, Warden, Defendants.

          ORDER

          Hon. William Q. Hayes United States District Court

         GARY N. 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).

         Plaintiff 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).

         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.[1] 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).

         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 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.”).

         Therefore, 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.

         II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A

         A. Standard of Review

         Because 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)).

         “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 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 standard. Id.

         B. Plaintiff's Allegations

         Plaintiff 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 ...


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