United States District Court, S.D. California
ORDER: 1) GRANTING PLAINTIFF LEAVE TO PROCEED IN
FORMA PAUPERIS [ECF No. 2] 2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM AND FOR SEEKING DAMAGES FROM IMMUNE
DEFENDANT PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND
§ 1915A(b) 3) DENYING MOTION FOR ACCESS TO COUNTY JAIL
LAW LIBRARY [ECF No. 8] AND 4) GRANTING MOTION TO AMEND
COMPLAINT [ECF No. 6]
BARRY TED MOSKOWITZ, CHIEF JUDGE UNITED STATES DISTRICT COURT
CONNELLY (“Plaintiff”), a pretrial detainee at
the Central Jail in San Diego, California
(“SDCJ”) and proceeding pro se, has filed a civil
rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No.
did not prepay the civil filing fee required by 28 U.S.C.
§ 1914(a) when he filed his Complaint; instead, he
submitted a Prison Certificate completed by a SDCJ
Administrative Sergeant attesting to his trust account
activity, which the Court will construe as a Motion to
Proceed In Forma Pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a) (ECF No. 2). Plaintiff has also filed
several supplemental documents on San Diego Sheriff's
Department Inmate Stationary, one of which requests leave to
amend (ECF No. 6), and one which seeks court-ordered access
to the SDCJ library (ECF No. 8).
Leave 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 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.
noted above, while Plaintiff has not filed a formal Motion to
Proceed IFP, he did submit a Prison Certificate issued by an
official at the SDCJ attesting as to his account balances as
required by 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR
3.2. See ECF No. 2 at 1; Andrews, 398 F.3d
at 1119. This Certificate shows Plaintiff had no average
monthly deposit, carried an average monthly balance of only
$.04 in his account during the 6-month period preceding the
filing of this action, and had only $.25 in available funds
to his credit at the time of filing.
on this accounting, the Court finds Plaintiff is
“unable to pay” any initial partial filing fee
pursuant to 28 U.S.C. § 1915(a)(a) and (b)(1) 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 leave to proceed IFP (ECF No. 2),
declines to exact any initial filing fee because his SDCJ
certificate shows he “has no means to pay it, ”
Bruce, 136 S.Ct. at 629, and directs the Watch
Commander of the SDCJ, or his designee, to collect the entire
$350 balance of the filing fees required by 28 U.S.C. §
1914 and to 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 sua sponte 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) (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)”).
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); Wilhelm, 680 F.3d at 1121. 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.; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
claims San Diego Police Officer Dudley “ma[d]e him
confess in violation of the 5th Amendment” after his
arrest and during an interrogation on December ...