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 PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 28 U.S.C.
§ § 1915A(b)
Gonzalo P. Curiel United States District Judge.
Powell (“Plaintiff”), proceeding pro se, is
currently incarcerated at Richard J. Donovan Correctional
Facility (“RJD”) in San Diego, California, and
has filed this civil rights action pursuant to 42 U.S.C.
§ 1983. See Compl., ECF No. 1.
claims a RJD dietician discontinued a hepatic diet he had
been previously prescribed at Lancaster State Prison based on
his chronic health issues and food allergies. He contends
that the dietician, together with the medical doctors and
inmate appeals officials who rejected his CDCR 602 Health
Care Appeal, RJD HC Log No. 18002770, which he attaches as an
exhibit and incorporates by reference, violated his
“right to medical care.” See Id. at 2-3.
He seeks $100, 000 in damages, and demands jury trial.
Id. at 7.
did not prepay the civil filing fee required by 28 U.S.C.
§ 1914(a) at the time of filing, but instead has filed a
Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). He has
since submitted additional exhibits from his CDCR medical
file in support of his Complaint (ECF No. 5).
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 who is granted leave to proceed
IFP remains obligated to pay the entire fee in
“increments” or “installments, ”
Bruce, 136 S.Ct. at 629; 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.
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.
support of his IFP Motion, Plaintiff has submitted certified
copies of his CDCR Inmate Statement Report showing his trust
account activity at the time of filing, as well as a Prison
Certificate signed by a RJD Accounting Officer attesting as
to his monthly balances and deposits. See ECF No. 3
at 1-3; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;
Andrews, 398 F.3d at 1119. These statements show
Plaintiff had no monthly deposits to his account, maintained
an average balance of $.03 in his account over the six month
period preceding the filing of his current Complaint, and had
an available balance of only $.17 to his credit at RJD as of
May 15, 2019. See id.; 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.”).
the Court grants Plaintiff's Motion to Proceed IFP (ECF
No. 2), declines to exact any initial filing fee because his
trust account statement shows he “has no means to pay
it, ” Bruce, 136 S.Ct. at 629, and directs the
Secretary of the CDCR to 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).
Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B)
Standard of Review
Plaintiff's IFP status or the payment of any partial
filing fees, the PLRA also obligates the Court to review
complaints filed by all persons proceeding IFP and by those,
like Plaintiff, who are “incarcerated or detained in
any facility [and] 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, ” “as soon as practicable
after docketing, ” and ideally before the service of
process upon any Defendant. See 28 U.S.C.
§§ 1915(e)(2) and 1915A(b). Under these statutes,
the Court must sua sponte dismiss complaints, or any portions
thereof, which are frivolous, malicious, fail to state a
claim, or which seek damages from defendants who are immune.
See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
2000) (en banc) (§ 1915(e)(2)); Rhodes v.
Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
(discussing 28 U.S.C. § 1915A(b)). “The purpose of
§ 1915 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, 907 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.
complaints must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “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” falls short of
meeting this plausibility standard. Id.; see
also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
there are well-pleaded factual allegations, a court should
assume their veracity, and then determine whether they
plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679; see also Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen
determining whether a complaint states a claim, a court must
accept as true all allegations of material fact and must
construe those facts in the light most favorable to the
plaintiff.”); Barren v. Harrington, 152 F.3d