United States District Court, S.D. California
ORDER GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS; [DOC. NO. 5] DISMISSING COMPLAINT
FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §
1915(E)(2)(B) AND 28 U.S.C. § 1915A(B)
MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE.
Almalik Rasuwl, a prisoner currently incarcerated at the
California Institution for Men (“CIM”), and
proceeding pro se, has filed a civil rights complaint
pursuant to 42 U.S.C. § 1983. See Compl., Doc.
No. 1. In addition, Plaintiff has filed a Motion to Proceed
In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915(a). See Doc. No. 5. In his Complaint,
Plaintiff alleges that his constitutional rights were
violated when he was a pre-trial detainee housed at the San
Diego Central Jail (“SDCJ”).
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 who is 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.
support of his IFP Motion, Plaintiff has submitted a Prison
Certificate signed by a trust account official at CIM,
together with a certified copy of his CDCR Inmate Statement
Report showing his trust account activity at the time of
filing. See Doc. No. 5 at 5-6; see also 28
U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;
Andrews, 398 F.3d at 1119. These statements show
that Plaintiff carried an average monthly balance of $84.53,
and had $54.14 in average monthly deposits to his account
over the 6-month period immediately preceding the filing of
his Complaint. He had an available balance of $36.18 at the
time of filing. See Doc. No. 5 at 6.
on this accounting, the Court GRANTS
Plaintiff's Motion to Proceed IFP and assesses his
initial partial filing fee to be $16.91 pursuant to 28 U.S.C.
the Court will direct the Secretary of the CDCR, or his
designee, to collect the initial fee assessed 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).
Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B)
Standard of Review
Plaintiff's IFP status or the payment of any 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)).
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