United States District Court, S.D. California
ORDER GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS; [DOC. NO. 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)
MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE.
Andrew Harley, while incarcerated at California State Prison,
Los Angeles County (“LAC”), and proceeding
pro se, has filed a civil rights complaint
(“Compl., ”) pursuant to 42 U.S.C. § 1983.
See Compl., Doc. No. 1.
did not pay the 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). See Doc No. 2.
Motion to Proceed In Forma Pauperis
order to commence a civil action, Plaintiff must pay a filing
fee of $400. See 28 U.S.C. § 1914(a). The
action may proceed despite his failure to prepay the entire
fee only if Plaintiff 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, because Plaintiff is a prisoner, even if he
is granted leave to proceed IFP, he will remain obligated to
pay the entire filing 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 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 prison
certificate authorized by a CDCR trust account official
attesting to his account activity. See Doc. No. 2 at
6-7; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;
Andrews, 398 F.3d at 1119. This certificate shows
Plaintiff had average monthly deposits of $53.33, carried an
average monthly balance of $48.50 over the 6-month period
preceding the filing of his Complaint, and retained an
available balance of $13.32 at the time of filing.
See Doc. No. 2 at 6.
on this accounting, the Court GRANTS
Plaintiff's Motion to Proceed IFP (Doc. No. 2) and
assesses an initial partial filing fee of $10.66 pursuant to
28 U.S.C. § 1915(b)(1). The Court will 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 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 review and sua sponte dismiss an IFP complaint,
and any complaint filed by a prisoner seeking redress from a
governmental entity, or officer or employee of a governmental
entity, 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.
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).