United States District Court, S.D. California
ORDER: 1) GRANTING MOTION 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 § 1915A(B)
Janis L. Sammartino United States District Judge.
Kevin Hagan, incarcerated at Richard J. Donovan Correctional
Facility (“RJD'”) in San Diego, California,
and proceeding pro se, has filed a civil rights Complaint
pursuant to 42 U.S.C. § 1983. (See
“Compl., ” ECF No. 1.)
claims RJD's Chief Medical Officer Ryan Barenchi, and
three other RJD doctors (Santos, Clayton, and Mezzles), have
“failed to address” his “severe pain”
in violation of the Eighth Amendment in December 2014, and on
other unspecified occasions in 2015, 2016, and 2017.
(Id. at 1-3.) He seeks injunctive relief preventing
retaliation and requiring “adequate pain medication,
” as well as $150, 000 in general and punitive damages.
(Id. at 7.)
did not prepay the civil filing fee required by 28 U.S.C.
§ 1914(a) when he filed his Complaint; instead, he has
filed a Motion to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a),
(ECF No. 2).
Plaintiff's IFP Motion
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 who is granted leave to proceed
IFP remains obligated to pay the entire fee in
“increments” or “installments, ”
Bruce v. Samuels, 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
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 submitted a
certified copy of his California Department of Corrections
and Rehabilitation (“CDCR”) Inmate Statement
Report, together with a certificate of funds certified by a
prison official at RJD, as required 28 U.S.C. §
1915(a)(2) and Civ. L. R. 3.2. (See ECF No. 3, at
1-4); Andrews, 398 F.3d at 1119. These documents
shows Plaintiff had average monthly deposits of $25.24, an
average monthly balance of $36.68 over the 6-month period
preceding the filing of his Complaint, and an available
balance of $10.14 at the time of filing. (See ECF
No. 3 at 1.) Based on this accounting, the Court
GRANTS Plaintiff's Motion to Proceed
IFP, (ECF No. 2), and assess an initial partial filing of
$7.33 pursuant to 28 U.S.C. § 1915(b)(1).
the Court will direct the Secretary of the CDCR, 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
total fee owed in this case must be collected and forwarded
to the Clerk of the Court pursuant to 28 U.S.C. §
Screening Pursuant to 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 Lopez v. Smith, 203 F.3d 1122, 1126-27
(9th Cir. 2000) (en banc) (discussing 28 U.S.C. §
1915(e)(2)); Byrd v. Phoenix Police Dept., No.
16-16152, 2018 WL 1352916, at *2 (9th Cir. 2018) (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.
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