United States District Court, S.D. California
ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS [DOC. NO. 2] AND 2) DIRECTING U.S. MARSHAL TO EFFECT
SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 28 U.S.C. §
1915(D) AND FED. R. CIV. P. 4(C)(3)
Gonzalo P. Curiel United States District Judge.
Ernest Kelly Holestine, currently incarcerated at Salinas
Valley State Prison (“SVSP”) in Soledad,
California, and proceeding pro se, has filed a civil rights
complaint pursuant to 42 U.S.C. § 1983. (See Compl.,
Doc. No. 1.) Holestine claims various prison and California
Department of Corrections and Rehabilitation
(“CDCR”) officials at Richard J. Donovan
Correctional Facility (“RJD”) and the California
Medical Facility (“CMF”), violated the Americans
with Disabilities Act, 42 U.S.C. § 12132, the
Rehabilitation Act, 29 U.S.C. § 794(a), and his Eighth
and Fourteenth Amendment rights, by denying his requests for
reasonable accommodation with respect to his prison
employment while he was incarcerated at RJD, and
involuntarily transferring him to CMF, a psychiatric
hospital, where he alleges to have been forcibly medicated,
subject to “excessive isolation, ” and to have
mentally decompensated. (See Compl., Doc. No. 1, at
3-4, 12, 16-18 ¶¶ 18-21, 68-76, 87-102.) Holestine
seeks declaratory and injunctive relief, as well as nominal,
compensatory, and punitive damages. (Id. at 19-20).
did not prepay the civil filing fee required by 28 U.S.C.
§ 1914(a) when he filed his Complaint; instead, he filed
a Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (Doc. 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. 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). However,
prisoners who are granted leave to proceed IFP remain
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 their 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) also 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, Holestine has submitted a
SVSP-certified copy of his CDCR Inmate Statement Report for
the 6-month period preceding the filing of his Complaint
(Doc. No. 2 at 6-7). See 28 U.S.C. §
1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d
at 1119. This Report shows Holestine carried an approximate
average monthly balance of $5.85, maintained $14.14 in
average monthly deposits in his account during the 6-months
preceding suit, and had a current available balance of only
$.83 at the time of filing. (See Doc. No. 2 at 6.)
on this accounting, the Court assesses Holestine’s
initial partial filing fee as $2.82 pursuant to 28 U.S.C.
§ 1915(b)(1), GRANTS his Motion to
Proceed IFP (Doc. No. 2), but declines to exact this initial
fee because his prison certificates indicate he currently has
“no means to pay it.” Bruce, 136 S.Ct.
at 629. Instead, the Court will direct the Secretary of the
CDCR or his designee, to collect the entire $350 balance of
the filing fees required by 28 U.S.C. § 1914 and forward
monthly installment payments to the Clerk of the Court
pursuant 28 U.S.C. § 1915(b)(2).
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
Holestine is a prisoner and is proceeding IFP, his Complaint
also 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 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
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).
currently pleaded, the Court finds Holestine’s
Complaint contains “sufficient factual matter, accepted
as true, ” to state Fourteenth Amendment claims for
relief that are “plausible on its face, ”
Iqbal, 556 U.S. at 678, and therefore, sufficient to
survive the “low threshold” set for sua sponte
screening pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b). See Wilhelm, 680 F.3d at 1123;
Iqbal, 556 U.S. at 678. Changes in conditions so
severe as to affect the sentence imposed in an unexpected
manner implicate the Due Process Clause itself, whether or
not they are authorized by state law. See Sandin v.
Conner, 515 U.S. 472, 484 (1995) (citing Vitek v.
Jones, 445 U.S. 480, 493 (1980) (transfer to mental
hospital); Washington v. Harper, 494 U.S. 210,
221-22 (1990) (involuntary administration of psychotropic
drugs)). In Vitek, the Supreme Court held that
“the stigmatizing consequences of a transfer to a
mental hospital for involuntary psychiatric treatment,
coupled with the subjection of the prisoner to mandatory
behavior modification as a treatment for mental illness,
constitute the kind of deprivations of liberty that requires
procedural protections.” Id. at 494; see
also Manzanillo v. Moulton, 2014 WL 4793780, at *11
(N.D. Cal. Sept. 25, 2014) (noting that Vitek
“held that the conjunction of stigmatization and
mandatory behavior modification without procedural
protections violated due process.”). “The liberty
interest at stake in Vitek mandated due process
protections before both the classification of the inmate as
‘mentally ill’ and his resultant transfer to a
mental hospital for involuntary psychiatric treatment.”
Neal v. Shimoda, 131 F.3d 818, 828 (9th Cir. 1997);
see also Wilkinson v. Austin, 545 U.S. 209, 229
(2005); Hendon v. Ramsey, 528 F.Supp.2d 1058, 1065
(S.D. Cal. 2007).
the Court will direct the U.S. Marshal to effect service of
summons Holestine’s Complaint on his behalf.
See 28 U.S.C. § 1915(d) (“The officers of
the court shall issue and serve all process, and perform all
duties in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3)
(“[T]he court may order that service be made by a
United States marshal or deputy ...