United States District Court, S.D. California
ORDER 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
[ECF NO. 2] 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)
William Q. Hayes United States District Court
Hughey (“Plaintiff”), proceeding pro se and
incarcerated at Richard J. Donovan Correctional Facility
(“RJD”) in San Diego, California, has filed a
civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF
claims that the Secretary of the California Department of
Corrections and Rehabilitation (“CDCR”) has
violated his rights to due process and equal protection of
the laws by promulgating and enforcing provisions of Title 15
of the California Code of Regulations to exclude him from
eligibility for early parole consideration as a
“non-violent offender” as provided by
California's Public Safety and Rehabilitation Act of
2016. Id. at 2-7.
did not prepay the $400 civil filing fee required by 28
U.S.C. § 1914(a) at the time of filing; instead, he has
filed a Motion to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. §
1915(a) (ECF No. 2).
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
“installments, ” Bruce v. Samuels, 136
S.Ct. 627, 629 (2016), 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 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
copy of his CDCR Inmate Statement Report and a Prison
Certificate completed by an accounting officer at RJD. (ECF
No. 3 at 1-3). 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 at the time of filing. (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”); 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, 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).
Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2)
and § 1915A(b)
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.
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). 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
Court finds that Plaintiff's Complaint contains
“sufficient factual matter, accepted as true, ”
to allege due process and equal protection claims that are
“plausible on [their] face, ” Iqbal, 556
U.S. at 678, and therefore sufficient to survive the
“low threshold” for proceeding past the screening
required by 28 U.S.C. §§ 1915(e)(2) and
1915A(b). See Wilhelm, 680 F.3d at 1123.
Therefore, the Court will order the U.S. Marshal to effect
service upon Defendant on Plaintiff's behalf.
See 28 U.S.C. § 1915(d) (“The officers of
the court shall issue and serve all process, and perform all
duties in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3)
(“[T]he court may order that service be made by a
United States marshal . . . if the plaintiff is authorized to
proceed in forma pauperis . . .”).