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Yasin v. Flynn

United States District Court, S.D. California

November 16, 2017

OMAR YASIN, Plaintiff,
v.
CAPTAIN D. FLYNN, et al., Defendants.

          ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (ECF NO. 4) AND (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND 28 U.S.C. § 1915A(B)

          HON CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE

         Omar Yasin (“Plaintiff”), while he was detained at the San Diego Sheriff's Department George Bailey Detention Facility (“GBDF”), and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.)

         Plaintiff claims two San Diego County Sheriff's Department Captains, one at GBDF, and another at the San Diego Central Jail (“SDCJ”), violated his Eighth Amendment rights by confining him in a five-foot by seven-foot cell with two other inmates on May 15, 2016.[1](ECF No. 1 at 1-2.)

         On August 1, 2017, the Court dismissed the action because Plaintiff failed to pay the filing fees required to commence a civil action by 28 U.S.C. § 1914(a) (ECF No. 3), but granted him forty-five days leave in which to pay those fees or file a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Id. at 4.)

         He has since filed a Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 4), together with a supplemental affidavit attesting as to his trust account activity and balances as required by 28 U.S.C. § 1915(a)(2) (ECF No. 8).

         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.[2] 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), (b)(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 twenty percent 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 twenty percent of the preceding month's income, in any month in which his account exceeds ten dollars, 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 IFP Motion, Plaintiff has submitted two prison certificates certified authorized OMDC officials. (ECF No. 4 at 5; ECF No. 8 at 4); see also 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. R. 3.2; Andrews, 398 F.3d at 1119. These certificates attest that Plaintiff carried an average monthly balance of $29.67, had average monthly deposits of $30.00 to his account over the six-month period immediately preceding the filing of his Motion, and had an available balance of $56.34 on the books at the time of filing. (ECF No. 4 at 5; ECF No. 8 at 4.) Thus, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 4) and assesses his initial partial filing fee to be $6.00 pursuant to 28 U.S.C. § 1915(b)(1).

         However, the Court will direct the Warden of OMDC, or his designee, to collect this initial fee only if sufficient funds are available in Plaintiff's account at the time this Order is executed. 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 remaining balance of the $350.00 total fee owed in this case must be collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(1).

         II. Screening of Plaintiff's Complaint

         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 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)).

         “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 “contain sufficient factual matter, accepted as ...


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