United States District Court, S.D. California
ORDER 1) GRANTING MOTIONS TO MAIL COMPLAINT AND TO
PROCEED IN FORMA PAUPERIS AND 2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE PURSUANT TO 28 U.S.C. § 1915(D)
AND FED. R. CIV. P. 4(C)(3)
JANIS L. SAMMARTINO, UNITED STATES DISTRICT JUDGE.
Mychal Andra Reed, proceeding pro se and incarcerated at
Richard J. Donovan Correctional Facility (“RJD”)
in San Diego, California, initiated this civil rights action
on February 9, 2018, by filing a “Motion for Permission
to Mail” together with a Civil Rights Complaint
pursuant to 42 U.S.C. § 1983. (See
“Compl., ” ECF No. 1.)
sought permission to mail his Complaint to the Court rather
than submit it electronically as required by S.D. Cal.
General Order 653, which established a pilot program for RJD
prisoners seeking to file civil rights actions in forma
pauperis pursuant to § 1983. (Id. at 1.)
Because Plaintiff claimed unidentified officials at RJD
refused to e-file his Complaint, the Court granted
Plaintiff's request and gave him 45 days leave in which
to submit his Complaint by mail, and to either pay
the full civil filing required by 28 U.S.C. § 1914(a),
or file a Motion to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a).
(See ECF No. 2 at 3-4.)
February 26, 2018, Plaintiff filed his Amended Complaint,
(ECF No. 3), together with a duplicate Motion seeking
permission to file it by mail, (ECF No. 5), followed by a
Motion to Proceed IFP, (ECF No. 6), and Prisoner Certificate
and Trust Fund Account Statement, (ECF No. 7).
claims two correctional officers at RJD (Defendants Zendejas
and Crespo) unlawfully retaliated against him by issuing
“fabricated” serious rules violations reports
(“RVRs”) charging him with misconduct after he
had lodged both verbal and written complaints and inmate
grievances against them. (See ECF No. 3 at 2-7.)
Plaintiff further alleges he reported Zendejas and
Crespo's retaliatory RVRs to both Warden Paramo and Lt.
Luna, but they failed to investigate or correct those
violations and ignored his pleas- also in retaliation for his
having filed complaints with the Office of Internal Affairs
and another pending civil rights action in the Central
District of California, Civil Case No. 2:12-cv-10727-VAP-JCG.
(Id. at 2-3; 11-12.) Plaintiff seeks $200, 000 in
general and punitive damages, as well as injunctive relief.
(Id. at 13.)
Motions for Permission to Mail and Proceed In Forma
noted above, the Court has already granted Plaintiff's
initial Motion requesting relief from General Order 653's
e-filing requirements, and has accepted his Amended Complaint
and IFP Motion for filing by U.S. mail. (See ECF
Nos. 2, 3, 6.) While unnecessary, the Court also
GRANTS his subsequent Motion requesting the
same relief, (ECF No. 5). All further filings in this case
shall be made by U.S. Mail, processed by RJD officials via
its institutional procedures, and accompanied by a proof of
service upon Defendants. No further motions requesting
permission to file by mail are necessary. See Fed.
R. Civ. P. 5(d)(1); Civ. L. R. 4.1(d), 5.2.
Plaintiff's IFP Motion, all 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, 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 copy of
his CDCR Inmate Statement Report as well as a Prison
Certificate completed by an accounting officer at RJD.
(See ECF No. 7, at 1-3); 28 U.S.C. §
1915(a)(2); Civ. L.R. 3.2; Andrews, 398 F.3d at
1119. These statements show that Plaintiff has carried no
average monthly balance, has had no monthly deposits to his
account over the 6-month period immediately preceding the
filing of his Complaint, and, consequently, had no available
balance on the books at the time of filing. (See ECF
No. 7, at 1, 3.) Based on this accounting, no initial partial
filing fee is assessed. 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. 6), declines to exact any initial
filing fee because his prison certificate indicates he has
“no means to pay it, ” Bruce, 136 S.Ct.
at 629, and directs the Secretary of the California
Department of Corrections and Rehabilitation
(“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.
Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2)
and § 1915A(b)
Plaintiff is a prisoner and is proceeding IFP, his Amended
Complaint, (ECF No. 3), 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) (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 ...