United States District Court, S.D. California
ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS [ECF NO. 2] 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)
HON.
JOHN A. HOUSTON, UNITED STATES DISTRICT JUDGE
Ricardo
Barbarin (“Plaintiff”), proceeding pro
se, is currently incarcerated at Centinela State Prison
(“CEN”) located in Imperial, California, and has
filed this civil rights action pursuant to 42 U.S.C. §
1983. See Compl., ECF No. 1. Plaintiff did not
prepay the civil filing fee required by 28 U.S.C. §
1914(a) at the time of filing, but instead filed a Motion to
Proceed In Forma Pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a) (ECF No. 2), along with a certified
Prison Certificate and copies of his CDCR Inmate Trust
Account Statement Report (ECF Nos. 2, 3).
I.
IFP Motion
All
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.[1] 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, 136 S.Ct. at 629; 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).
Section
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.
In
support of his IFP Motion, Plaintiff has submitted certified
copies 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 documents show that
Plaintiff has had no money in his trust account for the
6-months preceding the filing of this action, and that he had
a zero balance at the time of filing. See ECF No. 3;
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.”).
Therefore,
the Court GRANTS Plaintiff's Motion to
Proceed IFP (ECF No. 2), but declines to “exact”
any initial filing fee because his trust account statement
shows he “has no means to pay it, ”
Bruce, 136 S.Ct. at 629, and directs the Secretary
of the California Department of Corrections and
Rehabilitation (“CDCR”) to collect the entire
$350 balance of the filing fees required by 28 U.S.C. §
1914 and forward them to the Clerk of the Court pursuant to
the installment payment provisions set forth in 28 U.S.C.
§ 1915(b)(1).
II.
Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A(b)
A.
Standard of Review
Notwithstanding
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 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, ” “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) (§ 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.
2012)).
All
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
Cir. 2009).
“When
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
Procedure 12(b)(6)”).
While
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. Board of Regents of
the University of Alaska, 673 F.2d 266, 268 (9th Cir.
1982).
B.
Plaintiff's ...