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Richard v. Galbraith

United States District Court, S.D. California

July 1, 2019

CRAIG RICHARD, CDCR #J-36916, Plaintiff,
v.
C/O GALBRAITH; C/O SORENSEN; C/O KAHN; C/O NORIEGA, Defendants.

          ORDER: 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS [ECF NO. 3] AND (2) DISMISSING CIVIL ACTION FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915A(B)(1)

          HON. LARRY ALAN BURNS CHIEF UNITED STATES DISTRICT JUDGE

         Craig Richard (“Plaintiff”), currently incarcerated at the California Health Care Facility (“CHCF”) located in Stockton, California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1993 (ECF No. 1). While Plaintiff was housed at CHCF at the time he filed this action, the named Defendants are prison officials at the Richard J. Donovan Correctional Facility (“RJD”). (See Compl. at 1-2.)

         Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 3).

         I. Request to Proceed In Forma Pauperis

         All 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.[1] 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).

         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). 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 request to proceed IFP, Plaintiff has submitted a prison certificate authorized by a CHCF accounting official and a copy of his CDCR Inmate Statement Report. See ECF No. 3; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show that Plaintiff carried an average monthly balance of $1459.60 and average monthly deposits of $688.84. See ECF No. 2 at 2. The current balance in Plaintiff's trust account is $4038.90. Id. at 4.

         In this matter, Plaintiff has not shown the indigence required to proceed IFP. Therefore, because Plaintiff has shown that he is able to pay the filing fee in total, Plaintiff's Motion to Proceed IFP is DENIED.

         II. Screening of Complaint pursuant to 28 U.S.C. § 1915A

         While Plaintiff has been denied leave to commence this civil action without prepayment of the $400 civil filing fee required by 28 U.S.C. § 1914(a), and his case requires dismissal for that reason alone, the Court also elects to conduct a sua sponte review of Plaintiff's pleading because he was “incarcerated or detained in any facility [and] is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program” at the time he filed this action. See 28 U.S.C. § 1915A(a), (c).

         Section 1915A, also enacted as part of PLRA, requires sua sponte dismissal of prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Coleman v. Tollefson, 135 S.Ct. 1759, 1764 (2015); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000). “The purpose of § 1915A 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) (citations omitted.)

         A. Plaintiff's allegations

         On November 20, 2018, Plaintiff was “transferred” in a “single van transportation from California Medical Facility (“CMF”)” to RJD. (Compl. at 3.) While Plaintiff was in the van, he used a “handheld urinal” and when the van “hit a pot hole, ” it caused Plaintiff's “urine to spill in [his] lap and all over [his] underwear/underclothes.” (Id.)

         When Plaintiff arrived at RJD, he was “informed that [he] had been transferred to the wrong prison” and was “immediately placed” in Administrative Segregation (“Ad-Seg”). (Id.) Plaintiff “immediately informed” Defendant Galbraith of his “incident in the van.” (Id.) He further informed Galbraith that he “needed clean underwear/underclothes and a shower.” (Id.) Galbraith told Plaintiff he would “comply with [his] request but never did.” (Id.) Plaintiff asked Galbraith again for “clean clothing ...


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