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Cartee v. Imperial County Sheriff's Department

United States District Court, S.D. California

May 24, 2018

TREVOR DANIEL CARTEE, Booking No. 17-7267, Plaintiff,
v.
IMPERIAL COUNTY SHERIFF'S DEPARTMENT, Defendant.

          ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF NO. 5] AND 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND § 1915A(B)

          HON. CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE.

         TREVOR DANIEL CARTEE (“Plaintiff”), currently detained at the Imperial County Jail (“ICJ”), and proceeding pro se, has filed a single-paged civil rights complaint pursuant to 42 U.S.C. § 1983, which while not altogether clear, appears to allege that he was assaulted by unidentified Imperial County Sheriff's Department officials on an unspecified occasion and “refused medical attention.” See Compl., ECF No. 1 at 1.

         Plaintiff has also filed two supplemental documents, which the Court has accepted for filing in light of Plaintiff's pro se status, and despite violation of S.D. Cal. CivLR 83.9, which prohibits ex parte communications. See ECF Nos. 3, 7. In the first, Plaintiff claims his public defender is ineffective, his mother is suffering from lung cancer, the Judges in Imperial County are “not helping or doing their job properly, ” investigating agents have “fabricated” reports in his case, and he is “innocent and a victim of police brutality.” See ECF No. 3 at 1-2.

         In the second, Plaintiff continues to claim he has been “wrongfully incarcerated” at the ICJ since November 30, 2017, and he explicitly seeks to have his pending criminal proceedings “dropped and dismissed” because his “civil rights are being violated over and over.” See ECF No. 7 at 1-3. Specifically, Plaintiff claims a Narcotic Task Force Gang Unit Agent “tried to kill” him and committed perjury “during live court, ” id. at 1-4, an El Centro Police Officer “sexually harassed” his girlfriend, id. at 2, and that he has been “targeted by … local law officials” ever since a member of the Holtville Sheriff's Department beat and “tased” him during a previous arrest in June 2014. Id. at 4-6.

         He requests “release from [his] illegal detention, ” an “expungement of records, ” and that “something [be] done about all this injustice here in Imperial County.” Id. at 6, 7.

         I. Procedural History

         At the time he filed his Complaint, Plaintiff did not prepay the filing fee mandated by 28 U.S.C. § 1914(a). Therefore, on March 13, 2018, the Court dismissed his case, but granted Plaintiff leave to either pay the full filing fee, or file a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 4 (citing Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007) (a civil action may proceed despite a party's failure to pay only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)).

         Plaintiff was also cautioned that should he elect to proceed IFP, he would “remain obligated to pay the entire filing fee in increments” pursuant to 28 U.S.C. § 1915(b)(1), because he is a prisoner and regardless of whether his Complaint was dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and/or U.S.C. § 1915A(b). See id., ECF No. 4 at 2-3 & n.1.

         On March 29, 2018, Plaintiff elected to proceed by filing an IFP Motion. See ECF No. 5.

         II. Motion to Proceed In Forma Pauperis

         As Plaintiff now knows, to institute a civil action, he must pay a filing fee of $400.[1] See 28 U.S.C. § 1914(a). The action may proceed despite his 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, 493 F.3d at 1051; Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, because he is a prisoner, even if he is granted leave to proceed IFP, Plaintiff remains obligated to pay the entire filing 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 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

         Section 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) (hereafter “King”). 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.

         In support of his IFP Motion, Plaintiff has submitted a Prison Certificate issued by an ICJ Correctional Officer attesting to his trust account activity and balances for the 6-month period preceding the filing of his Complaint. See ECF No. 5 at 2; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This certificate shows that Plaintiff has carried a $0.85 average monthly balance, has had an average $0.85 monthly deposit to his account, and an available balance of $0.85 on the books at the time of filing. See ECF No. 5 at 2. Based on this accounting, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 5), and assess an initial partial filing of $0.17 pursuant to 28 U.S.C. § 1915(b)(1).

         However, the Court will direct the Corrections Chief Deputy of the ICJ, 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. ยง 1915(b)(4) acts as a ...


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