Miranda v. Madden

          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)(B) AND § 1915A(b)

          Hon. Larry Alan Burns Chief United States District Judge

         Plaintiff, Humberto I. Miranda, while incarcerated at Pelican Bay State Prison (“PBSP”) in Crescent City, California, filed this civil rights action pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Miranda seeks hold both Centinela (“CEN”) and PBSP correctional and medical officials liable for injuries he claims to have sustained when part of a visiting room ceiling collapsed on him while he was incarcerated at CEN on August 22, 2015. (Id. at 3.)

         Miranda did not prepay the civil filing fee required by 28 U.S.C. § 1914(a), but has instead filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

         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). However, prisoners who are granted leave to proceed IFP remain 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), 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. 2002).

         Section 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.

         In support of his IFP Motion, Miranda has submitted a copy of his CDCR Inmate Statement Report as well as a Prison Certificate completed by a trust account official at PBSP (ECF No. 2). See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show that while he carried an average monthly balance of $5.80, and had $5.78 in average monthly deposits to his trust account for the 6-months preceding the filing of this action, he maintained an available balance of only $.09 at the time of filing. (See ECF No. 2 at 4, 5.)

         Therefore, the Court GRANTS Miranda's Motion to Proceed IFP (ECF No. 2), but declines to exact the initial $1.16 initial filing fee assessed pursuant to 28 U.S.C. § 1915(b)(1) because his prison certificates indicates he may currently have “no means to pay it.” Bruce, 136 S.Ct. at 629. Instead, the Court will direct the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), or his designee, 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. Screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

         A. Standard of Review

         Because Miranda 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 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) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         “The 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 to “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.

         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).

         “Courts must consider the complaint in its entirety, ” including “documents incorporated into the complaint by reference” to be part of the pleading when determining whether the plaintiff has stated a claim upon which relief may be granted. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Fed.R.Civ.P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”); Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).

         B. Factual Allegations

         On August 22, 2015, at approximately 10 a.m., Miranda was in CEN's “C” Facility visiting room seated at a table with his girlfriend, Veronica Adame, when a “wet and heavy object hit Adame on the top of her head.” (Compl. at 14 ¶¶ 15, 18.) “Almost immediately, … more wet and heavy white objects, ” water, and debris that “smelled of mildew” fell from the ceiling above and struck both of them on the tops of their heads, neck, back, and shoulders. (Id. at 14-16, ¶¶ 19-22, 27-30.) Surprised and fearful, both Miranda and Adame “sought refuge” under the table, and then “crawled out of harm's way.” (Id. at 15 ¶¶ 14-15.) Defendant Correctional Officers Flores and Ramirez, who were assigned to the visiting room that day, informed Miranda that part of the ceiling had collapsed, and both “were laughing.” (Id. ¶¶ 25-26.)

         Ramirez and Flores requested medical personnel examine Adame for injuries, and she was escorted to the visiting room front desk “where only visitors were allowed.” (Id. at 17 ¶¶ 36-37.) “At this time [Miranda] was experiencing an aching, warm, and heavy pulling on his right shoulder.” (Id. at 18 ¶ 41.) When no medical staff arrived to provide him aid, Miranda asked Ramirez if he too would be examined. (Id. at 17-18 ¶¶ 38-39.) Ramirez sarcastically asked, “Are you serious?” and then both he and Flores warned that if Miranda wished to seek medical attention “his visit ...