United States District Court, S.D. California
ORDER: 1) GRANTING REQUEST TO PROCEED IN FORMA
PAUPERIS [ECF NO. 2]; 2) DISMISSING CLAIMS
FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §
1915(E)(2) AND § 1915A(B)
William Q. Hayes United States District Court
Dragasits (“Plaintiff”), currently incarcerated
at the Richard J. Donovan Correctional Facility
(“RJD”) located in San Diego, California, and
proceeding pro se, filed this civil rights action (ECF No.
1), together with a Request to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF
No. 2). On March 21, 2018, Plaintiff filed exhibits to his
Complaint. (ECF No. 6.)
Request 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.
support of his request to proceed IFP, Plaintiff has
submitted a prison certificate authorized by a RJD accounting
official and a copy of his CDCR Inmate Statement Report.
See ECF No. 4; 28 U.S.C. § 1915(a)(2); S.D.
Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These
documents shows that Plaintiff had an available balance of
zero at the time of filing. See ECF No. 4 at 1, 3.
Based on this accounting, the Court GRANTS Plaintiff's
request to proceed IFP, and will assess no initial partial
filing fee pursuant to 28 U.S.C. § 1915(b)(1).
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 will further direct 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).
Initial Screening per 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 Williams v. King, 875 F.3d 500, 502 (9th
Cir. 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing
Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
2000) (en banc)); 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)). A complaint is
“frivolous” if it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 324 (1989).
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 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
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).
February 9, 2015, Defendants Rucker and Figueroa
“intentionally searched” Plaintiff's cell
twice. (ECF No. 1 at 21). During the first search, Rucker and
Figueroa “took possession” of two “hot
pots” and one CD player. Id. They “made
a search slip” which they asked Plaintiff to sign.
Id. at 22. However, Plaintiff told Rucker and
Figueroa that he “had receipts for the items in
question” and refused to sign the search slip.
Id. As a result of this “argument, ”
Plaintiff claims that Rucker and Figueroa “carried out
a second search as an adverse action and used the cell search
as retaliation by withholding personal property.”
Id. Plaintiff further claims that Defendants
“left the cell in shambles” and
“intentionally did not give Plaintiff a cell search
slip of all the personal property” taken during the
second cell search. Id.
“discuss[ed] the matter regarding the second cell
search with Officer S. Corona.” Id. at 23.
Plaintiff gave Corona a “list of items that were taken
in the second search” by Rucker and Figueroa.
Id. Officer Corona “presented Sergeant
Whitting with the list of items taken in the second
search” and Whitting “looked at the list, read it
and . . . . walked away.” Id. Corona then
“wrote out a cell search receipt of all the items
taken.” Id. The cell search “slip”
was “turned into R&R attached to Plaintiff's
property card.” Id.
submitted an administrative grievance against Whitting, as
well as Rucker and Figueroa. Id. at 23-24. Plaintiff
accused Rucker and Figueroa of taking his personal property
“unlawfully.” Id. at 24. Plaintiff
claims that both of his administrative grievances ...