United States District Court, S.D. California
ORDER: 1) GRANTING REQUEST TO PROCEED IN FORMA
PAUPERIS [ECF NO. 2] AND 2) DISMISSING COMPLAINT FOR FAILING
TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND
Anthony J. Battaglia United States District Judge.
LAURI (“Plaintiff”), currently incarcerated at
California Men's Colony - East (“CMC”), in
San Luis Obispo, California, and proceeding pro se, filed
this civil rights action in the Central District of
California in September 1, 2017 (ECF No. 1), together with a
Request to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
Plaintiff claims prison officials at Richard J. Donovan
Correctional Facility (“RJD”) in San Diego,
California violated his Eighth and Fourteenth Amendment
rights while he was incarcerated there on September 23, 2016,
the Honorable Michael W. Fitzgerald transferred his case to
this Court for lack of proper venue pursuant to 28 U.S.C.
§ 1391(b) and § 1406(a) on September 25, 2017 (ECF
No. 5). Because Judge Fitzgerald found transfer was
appropriate, he deferred consideration of Plaintiff's
pending request to proceed IFP, and the corresponding duty to
sua sponte determine whether Plaintiff's Complaint is
frivolous, malicious, or fails to state a claim pursuant to
28 U.S.C. § 1915(e)(2), to this Court as well.
(Id. at 3 & n.1.)
Request to Proceed In Forma Pauperis
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, ___ 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 request to proceed IFP, Plaintiff has
submitted a prison certificate authorized by a CMC accounting
official and a copy of his CDCR Inmate Statement Report.
See ECF No. 2; 28 U.S.C. § 1915(a)(2); S.D.
Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These
documents shows that while Plaintiff carried an average
monthly balance of $.20, he had no monthly deposits to his
account over the 6-month period immediately preceding the
filing of his Complaint, and an available balance of zero at
the time of filing. See ECF No. 2 at 3, 5. Based on
this accounting, the Court GRANTS Plaintiff's request to
proceed IFP, and will assess no initial partial filing fee
pursuant to 28 U.S.C. § 1915(b)(1). 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 will further direct
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.
Initial Screening per 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 Williams v. King, ___ F.3d ___, 2017 WL
5180205, at *2 (9th Cir. Nov. 9, 2017) (discussing 28 U.S.C.
§ 1915(e)(2)) (citing 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)
(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)). A complaint is “frivolous” if it
“lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 324
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
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 RJD, its Warden Ted Neotti, and RJD's Litigation
Coordinator Denise McGuire, violated his Fourteenth Amendment
right to due process and the Eighth Amendment's
proscription of cruel and unusual punishment on September 23,
2016, when they acted as “parties” to a San Diego
Superior Court appellate proceeding during which a small
claims judgment against the CDCR in Plaintiff's favor was
vacated and remanded. (ECF No. 1 at 3, 5, 8.)
Plaintiff contends his TV, antenna, CD player, Timex watch,
headphones, coaxial cable, and TV splitter were either lost
or stolen during his transport between CMC and RJD on or
about July 26, 2011. (Id. at 5.) After attempts to
address his lost property issues were left unresolved via the
CDCR's administrative appeals process, Plaintiff claims
to have filed a small claims ...