United States District Court, S.D. California
ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS [ECF NO. 6] 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)
Larry Alan Burns, Chief Judge.
Salcido (“Plaintiff”), a prisoner incarcerated at
Salinas Valley State Prison (“SVSP”) located in
Soledad, California, and proceeding pro se, initially filed a
civil rights complaint (“Compl.”) pursuant to 42
U.S.C. § 1983 in the Eastern District of California. On
July 29, 2019, United States Magistrate Judge Stanley A.
Boone determined that the events giving rise to the claims
found in Plaintiff's Complaint occurred when he was
previously housed at the Richard J. Donovan Correctional
Facility (“RJD”) and transferred the entire
action to the Southern District of California. (ECF No. 2.)
did not prepay the filing fee required by 28 U.S.C. §
1914(a) to commence a civil action at the time he filed his
Complaint; instead, he later filed a Motion to Proceed In
Forma Pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915(a). (See ECF No. 6.)
Motion to Proceed In Forma Pauperis
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 v. Samuels, __ S.Ct. __, 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).
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 a copy of
his CDCR Inmate Statement Report, as well as a Prison
Certificate issued by a SVSP trust accounting official which
attests as to his balances and deposits over the 6-month
period preceding the filing of his Complaint. See
ECF No. 6 at 6-10; 28 U.S.C. § 1915(a)(2); S.D. Cal.
CivLR 3.2; Andrews, 398 F.3d at 1119. These
statements show Plaintiff has carried an average monthly
balance of $11.15, had an average monthly deposit of $11.02
credited to his account over the 6-month period immediately
preceding the filing of his Complaint, and an available
balance of $5.94 on the books at the time of filing.
the Court GRANTS Plaintiff's Motion to
Proceed IFP (ECF No. 6) and assesses his initial partial
filing fee to be $2.23 pursuant to 28 U.S.C. §
1915(b)(1). The Court will further direct the Secretary of
the CDCR, or his designee, to collect this initial filing 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
“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 remaining balance of the
$350 total fee owed in this case must be collected by the
agency having custody of the prisoner and forwarded to the
Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).
Screening of Complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)
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 sua sponte dismiss a prisoner's IFP complaint,
or any portion of it, which is frivolous, malicious, fails to
state a claim, or seeks damages from defendants who are
immune. See Williams v. King, 875 F.3d 500, 502 (9th
Cir. 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing
Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
2000) (en banc)); 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)”).
Federal Rules of Civil Procedure 8 and 12(b)(6) require a
complaint to “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).
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.”
Id. “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
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).