United States District Court, S.D. California
RAZHAE SHEPARD, Booking No. 19728104, Plaintiff,
SAN DIEGO SHERIFF'S DEPT.; WILLIAM D. GORE; MEDICAL STAFF; FOOD SERVICES; Dr. TRAN, 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) AND
John A. Houston, United States District Judge
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.
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.
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).
Motion to Proceed IFP
order to commence a civil action, Shepard must pay a filing
fee of $400. 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.
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.
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.
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).
Screening pursuant to 28 U.S.C. § 1915(e)(2) and §
Standard of Review
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)).
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