Shepard v. San Diego Sheriff Dept.

          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) AND § 1915A(B)

          Hon. John A. Houston, United States District Judge

         Plaintiff Razhae Shepard, currently incarcerated at the San Diego County Sheriff Department's George Bailey Detention Facility (“GBDF”), and proceeding pro se, has filed this civil rights action pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1.

         Shepard claims the San Diego Sheriff's Department (“SDSD”), unidentified members of its medical and food services staff, Sheriff William B. Gore, and a “contracted doctor” named Tran, have deprived him adequate medical care, failed to provide him an appropriate religious diet, and have given him the “run around” in response to the “numerous” grievances and internal affairs complaints he has filed at both the San Diego Central Jail (“SDCJ”), GBDF, and the Vista Detention Facility (“VDF”), ever since he was booked into County custody in May 2019. Id. at 1-5. He seeks injunctive relief requiring the Sheriff to “fix medical procedures” and to provide adequate religious diets for Jewish inmates, as well as $6.6 million in general and punitive damages. Id. at 7.

         Shepard has not paid the $400 civil and administrative filing fee required by 28 U.S.C. § 1914(a) to commence a civil action, but instead has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

         I. Motion to Proceed IFP

         In order to commence a civil action, Shepard must pay a filing fee of $400.^[1] See 28 U.S.C. § 1914(a). The action may proceed despite his 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, because Shepard 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 case is 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) 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, Shepard has submitted a copy of his San Diego Sheriff's Department Account Activity Statement reporting his trust account activity from 1-1-90 through 8-14-19. See ECF No. 2 at 5; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This statement shows Shepard had average monthly deposits of $53.15, carried an approximate average monthly balance of $23.12 over the 6-month period preceding the filing of his Complaint, and had $29.79 to his credit at the time of filing. See ECF No. 2 at 5.

         Based on this accounting, the Court GRANTS Shepard's Motion to Proceed IFP (ECF No. 2) and assesses an initial partial filing fee of $10.63 pursuant to 28 U.S.C. § 1915(b)(1). The Court will direct the Facility Commander of GBDF, or his designee, to collect this initial filing fee only if sufficient funds are available in Shepard'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).

         II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A

         A. Standard of Review

         Because Shepard 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 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. 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 “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.

         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.” 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 ...