United States District Court, S.D. California
ERIC C. CHATMAN, CDCR #BD-5474, Plaintiff,
CUSH ACURA; ADAM ROSSMAN, Manager; ALLEN SWEETOW, General Sales Manager; ACURA CORPORATION; TERRY ELMANI Defendants.
ORDER 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
[ECF NO. 12] AND 2) DISMISSING CIVIL ACTION FOR FAILING TO
STATE A CLAIM PURSUANT TO 28 U.S.C. §
William Q. Hayes United States District Court
CHATMAN (“Plaintiff”), proceeding pro se and
incarcerated at California State Prison in Corcoran,
California has filed this civil rights action pursuant to 42
U.S.C. § 1983. (ECF No. 1).
did not prepay the $400 civil filing fee required by 28
U.S.C. § 1914(a), but instead, filed a certified copy of
his inmate trust account statement which the Court liberally
construes as a Motion to Proceed In Forma Pauperis
(“IFP”). (ECF No. 12). He has since submitted six
letters to the Court detailing the allegations raised in his
Complaint. Those letters have been accepted for filing in
light of Plaintiff's pro se status, and despite Local
Rule 83.9, which clearly prohibits such ex parte
communications. (ECF Nos. 4-11, 13-18).
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, if the Plaintiff is a prisoner at the time
of filing, even if he is granted leave to proceed IFP, he
remains obligated to pay the entire filing 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 IFP Motion, Plaintiff has also submitted a
copy of his CDCR Inmate Statement Report showing his
available balance and trust account activity at CIM.
See ECF No. 12; 28 U.S.C. § 1915(a)(2); S.D.
Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This
statement shows that while Plaintiff had $50.33 deposited to
his account over the 6-month period immediately preceding the
filing of his Complaint, he had an available balance
of zero at the time of filing. See ECF No. 12 at 2.
Based on this accounting, the Court GRANTS Plaintiff's
Motion 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).
Sua Sponte Screening pursuant to 28 U.S.C. §
Standard of Review
prisoner's complaint “seeks redress from a
governmental entity or officer or employee of a governmental
entity, ” the Court “shall review” the
pleading “as soon as practicable after docketing,
” and “dismiss the complaint, or any portion of
the complaint, if [it] . . . is frivolous, malicious, or
fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A(a), (b)(1);
Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir.
2014). In this case, Plaintiff seeks to sue a car
manufacturer, one of its dealerships, and a sales manager for
events occurring during his employment there in 1996 through
1998. See ECF No. 1 at 1-5. Plaintiff does not seek
redress from or name any governmental actors or entities as
Defendants. Id. at 1-2. Therefore, §
1915A(a)'s screening provisions do not apply. See
Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016)
(“Section 1915A mandates early review … for all
complaints ‘in which a prisoner seeks relief from a
governmental entity…”) (quoting §
Plaintiff is proceeding IFP, however, his Complaint
is still subject to a sua sponte review, and
mandatory dismissal, if it is “frivolous, malicious,
fail[s] to state a claim upon which relief may be granted, or
seek[s] monetary relief from a defendant immune from such
relief, ” regardless of whether he seeks redress from a
“governmental entity.” See 28 U.S.C.
§ 1915(e)(2)(B); Coleman v. Tollefson, 135
S.Ct. 1759, 1763 (2015) (pursuant to 28 U.S.C. §
1915(e)(2) “the court shall dismiss the case at any
time if the court determines that-(A) the allegation of
poverty is untrue; or (B) the action or appeal-(i) is
frivolous or malicious; [or] (ii) fails to state a claim on
which relief may be granted.”); Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc)
(“[S]ection 1915(e) not only permits, but requires a
district court to dismiss an in forma pauperis complaint that
fails to state a claim.”).
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). To survive a motion to dismiss, the
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “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. at 679. The
“mere possibility of misconduct” falls short of
meeting this plausibility standard. Id.; see
also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
there are well-pleaded factual allegations, a court should
assume their veracity, and then determine whether they
plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679; see also Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen
determining whether a complaint states a claim, a court must
accept as true all allegations of material fact and must
construe those facts in the light most favorable to the
while the court has an obligation “where the petitioner
is pro se, particularly in civil rights cases, to construe
the pleadings liberally and to afford the petitioner the
benefit of any doubt, ” Hebbe v. Pliler, 627
F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v.
Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may
not “supply essential elements of claims that were ...