United States District Court, S.D. California
HUMBERTO I. MIRANDA, CDCR #AU-3793, Plaintiff,
RAYMOND MADDEN, Warden; KEVIN REILLY, Health Care CEO; RAMIREZ, Correctional Officer; FLORES, Correctional Officer; NANCY ADAM, M.D.; JOHN DOE, Nurse, Defendants.
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)
Larry Alan Burns Chief United States District Judge
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.)
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).
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,
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).
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, 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.)
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).
Screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
Standard of Review
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)).
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.
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).
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).
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. ¶¶
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 ...