United States District Court, S.D. California
JOSE G. AMEZQUITA, CDCR #AS-4217, Plaintiff,
C/O HOUGH, Correctional Officer; C/O DOWNS, Correctional Officer; WARDEN DOE 1; ASSOCIATE WARDEN DOE 2; SERGEANT DOE 3, Defendants.
1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF NO. 2]
2) DISMISSING DEFENDANTS PURSUANT TO 28 U.S.C. §
1915(E)(2) AND § 1915A(B)(1) AND 3) DIRECTING U.S.
MARSHAL TO EFFECT SERVICE UPON DEFENDANTS HOUGH AND DOWNS
PURSUANT TO 28 U.S.C. § 1915(D) AND FED. R. CIV. P.
Anthony J. Battaglia United States District Judge
Amezquita (“Plaintiff”), proceeding pro se and
currently incarcerated at Salinas Valley State Prison
(“SVSP”) in Soledad, California, has filed a
Complaint pursuant to 42 U.S.C. § 1983 (“Compl.,
ECF No. 1), together with a Motion to Proceed In Forma
Pauperis (“IFP”) (ECF No. 2). Plaintiff,
claims prison officials at Richard J. Donovan Correctional
Facility (“RJD”) in San Diego, California,
violated his Eighth Amendment rights in October 2018 when
they authorized his transfer from administrative segregation
to RJD’s “C-Yard level 4.” (See
Compl., ECF No. 1 at 3, 8-10 ¶¶ 1-17.)
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);
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).
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 Motion, Plaintiff has submitted a copy of his
CDCR Inmate Statement Report as well as a prison certificate
of funds authorized by a SVSP accounting official.
See ECF No. 2 at 5-7, 28 U.S.C. § 1915(a)(2);
S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119.
These records show that Plaintiff had an average monthly
deposit of $277.52, and carried an average monthly balance of
$290.17 over the 6-month period immediately preceding the
filing of his Complaint-and that there remained an available
balance of $42.91 in his account at the time of filing.
the Court GRANTS Plaintiff’s Motion to
Proceed IFP (ECF No. 2) and assesses an initial partial
filing fee of $58.03 pursuant to 28 U.S.C. § 1915(b)(1).
The Court further directs 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 pursuant to 28 U.S.C. § 1915(e)(2) and §
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 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) (citations omitted.)
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).