United States District Court, S.D. California
TREVOR DANIEL CARTEE, Booking No. 17-7267, Plaintiff,
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
CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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)).
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.
March 29, 2018, Plaintiff elected to proceed by filing an IFP
Motion. See ECF No. 5.
Motion to Proceed In Forma Pauperis
Plaintiff now knows, to institute a civil action, he must pay
a filing fee of $400. 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).
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.
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.
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. § 1915(b)(4) acts as a