United States District Court, S.D. California
ORDER: 1) GRANTING PLAINTIFF'S MOTION TO PROCEED
IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(A) (ECF
NO. 2) AND 2) DISMISSING CLAIMS AND DEFENDANTS FOR FAILING TO
STATE A CLAIM
BARRY TED. MOSKOWITZ CHIEF JUDGE, UNITED STATES DISTRICT
Rademaker (“Plaintiff”), currently housed at
Richard J. Donovan Correctional Facility located in San
Diego, California, and proceeding pro se, has filed a civil
rights complaint (“Compl.”) pursuant to 42 U.S.C.
§ 1983 (ECF No. 1). Plaintiff has filed a Motion to
Proceed In Forma Pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a) (ECF No. 2).
Plaintiff's 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). An 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 a prisoner, like Plaintiff, is granted
leave to proceed IFP, he remains obligated to pay the entire
fee in “increments, ” see Williams v.
Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless
of whether his action is ultimately dismissed. See
28 U.S.C. § 1915(b)(1) & (2).
28 U.S.C. § 1915, as amended by the Prison Litigation
Reform Act (“PLRA”), a prisoner seeking leave to
proceed IFP must submit a “certified copy of the trust
fund account statement (or institutional equivalent) for the
prisoner for the six-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
the prisoner's 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).
support of his IFP Motion, Plaintiff has submitted a
certified copy of his trust account statement pursuant to 28
U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2.
Andrews, 398 F.3d at 1119. The Court has reviewed
Plaintiff's trust account statement, but it shows that he
has a current available balance of 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.”); Taylor v.
Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (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. 2) and assesses no initial partial filing fee per 28
U.S.C. § 1915(b)(1). However, the entire $350 balance of
the filing fees mandated will be collected by the California
Department of Corrections and Rehabilitation
(“CDCR”) and forwarded to the Clerk of the Court
pursuant to the installment payment provisions set forth in
28 U.S.C. § 1915(b)(1).
Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and
Plaintiff's IFP status or the payment of any partial
filing fees, the PLRA also obligates the Court to review
complaints filed by all persons proceeding IFP and by those,
like Plaintiff, who are “incarcerated or detained in
any facility [and] accused of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms or
conditions of parole, probation, pretrial release, or
diversionary program, ” “as soon as practicable
after docketing.” See 28 U.S.C. §§
1915(e)(2) and 1915A(b). Under these statutes, the Court must
sua sponte dismiss complaints, or any portions thereof, which
are frivolous, malicious, fail to state a claim, or which
seek damages from defendants who are immune. See 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
(§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d
1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. §
complaints 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. 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 Cir. 2009).
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
plaintiff.”); Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)
“parallels the language of Federal Rule of Civil
while the court “ha[s] 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
not initially pled.” Ivey v. Board of Regents of
the University of Alaska, 673 F.2d 266, 268 (9th Cir.
Defendants Juarez, Garez, Olson, Sosa, and Self
initial matter, the Court finds that Plaintiff has failed to
state a § 1983 claim against Juarez, Garez, Olson, Sosa,
and Self. The only allegations pertaining to these Defendants
are Plaintiff's allegations that they are “evading
their legal duties” by failing to respond ...