United States District Court, S.D. California
ORDER:(1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS (ECF No. 2); AND (2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM AND FOR SEEKING DAMAGES FROM IMMUNE
Cynthia Bashant United States District Judge
Trevor Neil Schmidt, proceeding pro se and currently
incarcerated at North Kern State Prison (“NKSP”)
in Delano, California, initiated this civil rights action
pursuant to 42 U.S.C. § 1983. At the time of filing this
case, Plaintiff was still held in pretrial custody at the San
Diego County Jail (“SDCJ”), on April 12, 2018.
(See ECF No. 1.)
did not prepay the $400.00 civil filing fee required by 28
U.S.C. § 1914(a) at the time of filing, but instead
filed a Motion to Proceed In Forma Pauperis
(“IFP”). (See ECF No. 2.)
Motion to Proceed IFP
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
$400.00. 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, if the Plaintiff is a prisoner at the time of
filing, he 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), even if he is granted leave to proceed IFP 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 twenty percent 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
twenty percent of the preceding month's income, in any
month in which his account exceeds $10.00, 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 copies of
a San Diego Sheriff's Department Inmate Account Activity
statement showing his available balance and trust account
activity from November 2016 through March 2018. (See
ECF No. 2 at 6-8); 28 U.S.C. § 1915(a)(2); S.D. Cal.
Civ. L.R. 3.2; Andrews, 398 F.3d at 1119. This
statement shows while Plaintiff had a $68.17 balance to his
credit in October 2017, he had no money deposited into his
account over the next six-month period preceding the filing
of his Complaint, and had an available balance of zero at the
time of filing. (See ECF No. 2 at 7.)
on this accounting, the Court GRANTS
Plaintiff's Motion to Proceed IFP (ECF No. 2), 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”).
Court will further direct the Secretary of the California
Department of Corrections and Rehabilitation
(“CDCR”), into whose custody he has since been
transferred (ECF No. 3), or his designee, to instead collect
the entire $350.00 balance of the filing fee required by 28
U.S.C. § 1914 and forward installments payments to the
Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(1).
Screening Pursuant to 28 U.S.C. § 1915(e)(2) and §
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 review and sua sponte dismiss an IFP
complaint and any complaint filed by a prisoner seeking
redress from a governmental entity or officer or employee of
a governmental entity that 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) (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); Wilhelm, 680 F.3d at 1121.
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