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 PURSUANT TO 28 U.S.C. § 1915(E)(2) AND 28 U.S.C.
§ § 1915A(B) (ECF NO. 2)
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE
Gary Ronnell Perkins, proceeding pro se, is currently
incarcerated at Centinela State Prison located in Imperial,
California, and has filed this civil rights action pursuant
to 42 U.S.C. § 1983. See Complaint
(“Compl.”), ECF No. 1. In addition, Plaintiff has
filed a Motion to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a),
along with a certified Prison Certificate and a copy of his
CDCR Inmate Trust Account Statement Reports (ECF Nos. 2, 3).
After reviewing Plaintiff's Motion and the claims
presented in his Complaint, the Court rules as follows.
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). A
prisoner who is granted leave to proceed IFP remains
obligated to pay the entire fee in “increments”
or “installments, ” Bruce v. Samuels,
136 S.Ct. 627, 629 (2016); 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); 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
certified copy 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 CEN Accounting Officer
attesting as to his monthly balances and deposits.
See ECF No. 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 average monthly deposits of
$106.67 to his account and maintained an average balance of
$174.23 over the six-month period preceding the filing of his
current Complaint. At the time of filing, however, he had an
available balance of only $3.70 to his credit. See
ECF No. 3.
on this accounting, the Court GRANTS
Plaintiff's Motion to Proceed IFP (ECF No. 2) and
assesses his initial partial filing fee to be $34.85 pursuant
to 28 U.S.C. § 1915(b)(1). Because Plaintiff's
available balance may be insufficient to satisfy this initial
fee, the Court will direct the Secretary of the CDCR, or his
designee, to collect it 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 . . . 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).
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 including
those, like Plaintiff, who are “incarcerated or
detained in any facility, ” “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) (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 § 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
1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)
“parallels the language of Federal Rule of Civil
the court “ha[s] 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 & n.7 (9th Cir. 2010) (citing Bretz v.
Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may
not “supply essential elements of claims that were not
initially pled.” Ivey v. Bd. of Regents of the
Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff's Factual Allegations
February of 2017, the CDCR implemented a policy that
“authorized prisoners serving a sentence of ‘life
without the possibility of parole' to be housed at any
Level III” facility that has a “lethal
electrified fence.” Compl. at 9. Plaintiff alleges
“classification staff representative auditors”
have been “approving endorsements of all other inmates
similarly situated” to Plaintiff to “prisons
closer to Los Angeles” than CEN. Id. at 10.
November 27, 2017, Plaintiff “appeared before the unit
classification committee” and “requested transfer
and placement at a Level II facility closest to Los Angeles
due to medical hardships of Plaintiff's mother and
wife.” Id. at 10. The classification
committee, however, “elected” to recommend
Plaintiff for transfer to the Richard J. Donovan Correctional
Facility (“RJD”) ...