United States District Court, S.D. California
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS; AND (2) DISMISSING COMPLAINT FOR FAILING TO STATE A
CLAIM AND FOR SEEKING MONETARY RELIEF AGAINST IMMUNE
GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE
Lee Baker III. (“Plaintiff”), a California state
prisoner incarcerated at the Richard J. Donovan Correctional
Facility (“RJD”), and proceeding pro se, has
filed a civil rights complaint (“Compl.”)
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff did
not prepay the civil filing fee required by 28 U.S.C. §
1914(a), but has filed a Motion to Proceed In Forma
Pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915(a). (ECF No. 2.)
Plaintiff's Motion to Proceed IFP
parties instituting any civil action, suit or proceeding in a
district court of the United States must pay a filing fee.
See 28 U.S.C. § 1914(a). An 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). Rodriguez v.
Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if
the plaintiff is a prisoner, even if he is granted leave to
proceed IFP, he remains obligated to pay the full entire fee
in “increments, ” see Williams v.
Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless
of whether his action is ultimately dismissed. See
28 U.S.C. § 1915(b)(1) & (2).
28 U.S.C. § 1915, as amended by the Prison Litigation
Reform Act (“PLRA”), prisoners seeking leave to
proceed IFP must submit a “certified copy of the trust
fund account statement (or institutional equivalent) for the
. . . six-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 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 20
percent of the preceding month's income, in any month in
which the prisoner's 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).
support of his IFP Motion, Plaintiff has submitted a prison
certificate attesting to his trust account balance and
activity for the six-month period prior to the filing of his
Complaint as required by 28 U.S.C. § 1915(a)(2) and S.D.
Cal. CivLR 3.2. This certificate shows that Plaintiff had
only $0.15 in funds to his credit at the time of filing. [ECF
No. 3 at 1.] Therefore, the Court GRANTS
Plaintiff's Motion to Proceed IFP and assesses no initial
partial filing fee per 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.”); Taylor v. Delatoore, 281 F.3d
844, 850 (9th Cir. 2002) (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.”) However,
the entire $350 balance of the filing fee due for this case
must be forwarded to the Clerk of the Court pursuant to the
installment payment provisions set forth in 28 U.S.C. §
Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B)
Standard of Review
Court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, ”
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.” See 28 U.S.C.
§§ 1915(e)(2) and 1915A(b). 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 28
U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).
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. at 679. The
“mere possibility of misconduct” falls short of
meeting the Iqbal plausibility standard.
Id.; see also Moss v. U.S. Secret Service,
572 F.3d 962, 969 (9th Cir. 2009).
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) (“Under
§ 1983, when 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 1193, 1194 (9th Cir. 1998) (noting
that § 1915(e)(2) “parallels the language of
Federal Rule of Civil Procedure 12(b)(6)”). However,
while the court has an “obligation . . . where the
petitioner is pro se, particularly in civil rights cases, to
construe the pleadings liberally and to afford the petitioner
the benefit of any doubt, ” Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010), citing Bretz v.
Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en
banc), it may not, in so doing, “supply essential
elements of the claim that were not initially pled.”
Ivey v. Board of Regents of the University of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
1983 creates a private right of action against individuals
who, acting under color of state law, violate federal
constitutional or statutory rights.” Devereaux v.
Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983
“is not itself a source of substantive rights, but
merely provides a method for vindicating federal rights
elsewhere conferred.” Graham v. Connor, 490
U.S. 386, 393-94 (1989). “To establish § 1983
liability, a plaintiff must show both (1) deprivation of a
right secured by the Constitution and laws of the United
States, and (2) that the deprivation was committed by a
person acting under color of state law.” Tsao v.
Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir.
alleges that he is a “hearing impaired inmate that was
at the EOP level of care.” (Compl. at 3.) In 2001,
Plaintiff claims he was “forced to contract and sign a
CDC 345 form.” (Id.) However, in June of 2018
he was “going over the 345 form” and
“noticed it was [his] choice to withdraw [his] power of
attorney” and “close [his] trust account at any
time.” (Id.) Plaintiff alleges that he filed a
grievance to “revoke the Director of Corrections and
Rehabilitation as [his] power of attorney and to ...