United States District Court, S.D. California
ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS [ECF NO. 2] 2) DISMISSING CIVIL ACTION FOR FAILING
TO STATE A CLAIM AND FOR SEEKING DAMAGES FROM IMMUNE
DEFENDANTS PURSUANT TO 28 U.S.C. § 1915(E)(2)(B) AND
§ 1915A(B) AND 3) DENYING MOTION FOR SERVICE AS MOOT
[ECF NO. 5]
Gonzalo P. Curiel, United States District Judge.
PATRICK DAVIDSON (“Plaintiff”), currently
incarcerated at the California Correctional Institution
(“CCI”) in Tehachapi, California, and proceeding
pro se, has initiated this civil rights action pursuant to 42
U.S.C. § 1983. See Compl., ECF No. 1.
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), followed by a Motion for Service of his Complaint by
the U.S. Marshal pursuant to Fed.R.Civ.P. 4(c)(3) (ECF No.
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 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.
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 specialist at CCI.
See ECF No. 3 at 1-3; 28 U.S.C. § 1915(a)(2);
S.D. Cal. CivLR 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. 3 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. 2), 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 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
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)); 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. 2012)).
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) (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)”).
12(b)(6) requires a complaint to “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. 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.”
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).
claims the County of San Diego, its former District Attorney
Bonnie Dumanis, San Diego Superior Court Judge Margie G.
Woods, a case records analyst, and an unnamed counselor at
CCI, violated his Eighth and Fourteenth Amendment rights by
“illegally chang[ing]” his criminal sentence,
first imposed on October 25, 2013, in San Diego Superior
Court No. SCD 236535, from an “indeterminate
life” term on Count 1 to “LWOP” (life
without the possibility of parole) on a “Legal Status
Summary” form issued by the California Department of
Corrections and Rehabilitation on March 2, 2016. See
Compl., ECF No. 1 at 2-4, & Ex. A, ECF No. 1-2 at 2-4.
seeks injunctive relief enjoining the imposition of this
“illegal sentence, ” and $50, 725 in general and
punitive damages for the 715 days he alleges to have spent
“believing he has been sentenced to die of old age in
prison.” See ECF No. 1 at 5, 6.