United States District Court, S.D. California
ORDER 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
[ECF No. 8] 2) DISMISSING COMPLAINT FOR FAILING TO STATE A
CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND §
1915A(b) AND 3) DENYING MOTION FOR RESTRAINING ORDER [ECF No.
William Q. Hayes United States District Court
Paul Ruff (“Plaintiff”), currently incarcerated
at the Richard J. Donovan Correctional Facility
(“RJD”) located in San Diego, California, and
proceeding pro se, has filed a civil rights Complaint
pursuant to 42 U.S.C. § 1983. (ECF No. 1). In addition,
Plaintiff has filed a Motion for Restraining Order (ECF No.
6), along with a certified copy of his inmate trust account
statement which the Court liberally construes to be a Motion
to Proceed In Forma Pauperis (“IFP”) (ECF No. 8).
Motion 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.
trust account statement shows Plaintiff has had no monthly
deposits to his account, has carried no balance over the six
month period preceding the filing of his Complaint, and that
his current available balance is zero. 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's Motion to Proceed IFP (ECF
No. 8), declines to “exact” any initial filing
fee because his trust account statement shows he “has
no means to pay it, ” Bruce, 136 S.Ct. at 629,
and directs the Secretary for the California Department of
Corrections and Rehabilitation (“CDCR”) 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. § 1915(e)(2)
and § 1915A
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) (citations
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 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.
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).
alleges that he was diagnosed with liver cancer in November
2016. (ECF No. 1 at 4.) Plaintiff was told that he would
undergo surgery to remove the tumor in his liver but he was
later informed that the operation was “too
complicated.” (Id.) Plaintiff claims this is
causing him “undue stress” and he is concerned
that he will be assigned a cellmate who “wants to
fight.” (Id.) Due to Plaintiff's medical
condition he has to “arise at all times of the night to
use toilet and sink.” (Id.) Plaintiff believes
that a cellmate would rather harm Plaintiff and receive a
cell transfer than “suffer the environment of living
with [an] inmate suffering from bodily illnesses that wake
you up through the night.” (Id. at ...