United States District Court, S.D. California
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS;
[DOC. NO. 2] DISMISSING CIVIL ACTION SUA SPONTE FOR FAILING
TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED PURSUANT TO
28 U.S.C. § 1915(E)(2)(B)(II) & §
1915A
HON
MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE.
Plaintiff
Steps Winn Davis, a state inmate currently incarcerated at
the California Rehabilitation Center locate in Norco,
California, and proceeding pro se, has filed a civil
rights complaint pursuant to 42 U.S.C. § 1983 seeking
damages against the San Diego Police Department
(“SDPD”) and individual SDPD officers.
See Doc. No. 1. Plaintiff did not pay the filing fee
required by 28 U.S.C. § 1914(a) to commence a civil
action when he filed his Complaint; instead, he has filed a
Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a). See Doc. No.
2.
I.
Motion to Proceed IFP
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);
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.
1999). However, a prisoner who is granted leave to proceed
IFP remains 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 his 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) 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, Plaintiff has submitted a copy of
his CDCR inmate statement report. See ECF No. 2 at
3; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;
Andrews, 398 F.3d at 1119. This statement indicates
that Plaintiff had an available balance of $0.33 at the time
of filing. See ECF No. 2 at 3. Thus, the Court
GRANTS Plaintiff's Motion to Proceed IFP
(Doc. No. 2) and assesses no initial partial filing fee
pursuant to 28 U.S.C. § 1915(b)(1).
II.
Screening Pursuant to 28 U.S.C. § 1915(e)(2)
A.
Standard of Review
A
complaint filed by any person proceeding in forma pauperis is
subject to sua sponte dismissal, however, if it is
“frivolous, malicious, fail[s] to state a claim upon
which relief may be granted, or seek[s] monetary relief from
a defendant immune from such relief.” 28 U.S.C. §
1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845
(9th Cir. 2001) (per curiam) (holding that “the
provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited
to prisoners.”); Lopez v. Smith, 203 F.3d
1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection
1915(e) not only permits, but requires a district court to
dismiss an in forma pauperis complaint that fails to state a
claim.”).
All
complaints must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “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” falls short of
meeting this plausibility standard. Id.; see
also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009).
“When
there are well-pleaded factual allegations, a court should
assume their veracity, and then determine whether they
plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679; see also Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen
determining whether a complaint states a claim, a court must
accept as true all allegations of material fact and must
construe those facts in the light most favorable to the
plaintiff.”); Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)
“parallels the language of Federal Rule of Civil
Procedure 12(b)(6)”).
However,
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).
B.
Discussion
1.
Factua ...