United States District Court, S.D. California
ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS [ECF NO. 2] AND 2) DIRECTING U.S. MARSHAL TO EFFECT
SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 28 U.S.C. §
1915(D) AND FED. R. CIV. P. 4(C)(3)
John A. Houston United States District Judge.
Lamar Gathrite (“Plaintiff”), currently
incarcerated at the Richard J. Donovan Correctional Facility
(“RJD”) located in San Diego, California, and
proceeding pro se, has filed a civil rights complaint
pursuant to 42 U.S.C. § 1983, claiming prison officials
at RJD have violated his First and Eighth Amendment rights.
See Compl., ECF No. 1. Plaintiff did not prepay the
civil filing 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) (ECF No. 2).
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). However,
prisoners who are granted leave to proceed IFP remain
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 their action is ultimately dismissed.
See 28 U.S.C. § 1915(b)(1) & (2);
Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.
1915(a)(2) also 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 completed by a trust account specialist at RJD.
See ECF No. 3 at 1; 28 U.S.C. § 1915(a)(2);
S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. The
trust account official attests that Plaintiff had average
monthly deposits of $19.72, and maintained an average monthly
balance of $22.34 in his account during the 6-months
preceding suit; but he carried a current available balance of
only $.18 at the time of filing. See ECF No. 3 at 1.
the Court GRANTS Plaintiff's Motion to
Proceed IFP (ECF No. 2), declines to exact the $4.47 partial
initial filing fee assessed because his prison certificate
indicates he currently has “no means to pay it, ”
Bruce, 136 S.Ct. at 629, and directs the Secretary
of the CDCR, or his designee, to instead collect the entire
$350 balance of the filing fees required by 28 U.S.C. §
1914 and forward them to the Clerk pursuant to 28 U.S.C.
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
Plaintiff is a prisoner and is proceeding IFP, his Complaint
also 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) (citation
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).
currently pled, the Court finds Plaintiff's Complaint
contains “sufficient factual matter, accepted as true,
” to state First and Eighth Amendment claims for relief
that are “plausible on its face, ”
Iqbal, 556 U.S. at 678, and therefore, sufficient to
survive the “low threshold” set for sua sponte
screening pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b). See Wilhelm, 680 F.3d at 1123;
Iqbal, 556 U.S. at 678; Rhodes v. Robinson,
408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the
prison context, a viable claim of First Amendment retaliation
entails five basic elements: (1) An assertion that a state
actor took some adverse action against an inmate (2) because
of (3) that prisoner's protected conduct, and that such
action (4) chilled the inmate's exercise of his First
Amendment rights, and (5) the action did not reasonably
advance a legitimate correctional goal.”); Estelle
v. Gamble, 429 U.S. 97, 104 (1976) (prison
officials' deliberate indifference to an inmate's
serious medical needs constitutes cruel and unusual
punishment in violation of the Eighth Amendment). Therefore,
the Court will direct the U.S. Marshal to effect service of
summons and Plaintiff's Complaint upon Defendants on his
behalf. See 28 U.S.C. § 1915(d) (“The
officers of the court shall issue and serve all process, and
perform all duties in [IFP] cases.”); Fed.R.Civ.P.
4(c)(3) (“[T]he court may order that service be made by
a United States marshal or deputy marshal ... if the
plaintiff is authorized to proceed in forma pauperis under 28
U.S.C. § 1915.”).