United States District Court, S.D. California
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS;
[DOC. NO. 2] DISMISSING COMPLAINT FOR FAILING TO STATE A
CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2)(B) AND 28
U.S.C. § 1915A(B)
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE.
Miguel Angel Lira, while incarcerated at the San Diego County
Sheriff Department's George Bailey Detention Facility
(“GBDF”) in San Diego, California, and proceeding
pro se, has filed a civil rights Complaint pursuant to 42
U.S.C. § 1983. See Compl., Doc. No. 1.
Plaintiff did not pay the fee required by 28 U.S.C. §
1914(a) 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) (Doc. No. 2).
Motion to Proceed IFP
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);
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).
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, Plaintiff has submitted a copy of
his San Diego County Sheriff's Department Inmate Trust
Account Activity statement. See Doc. No. 2 at 6; 28
U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;
Andrews, 398 F.3d at 1119. This statement shows that
while Plaintiff had an approximate average monthly deposit of
$3.66 to his account, and carried an approximate average
monthly balance of $7.16 over the past six months, he had
only a $1.05 available balance to his credit at the time of
filing. See Doc. No. 2 at 6.
on this accounting, the Court assesses no initial partial
filing fee pursuant to 28 U.S.C. § 1915(a)(1) and
(b)(1), as Plaintiff has insufficient funds with which to pay
an initial fee at the time this Order issues. 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 Court GRANTS Plaintiff's Motion to
Proceed IFP, declines to exact an initial filing fee because
his trust account statements suggest he may have “no
means to pay it, ” Bruce, 136 S.Ct. at 629,
and instead directs the Watch Commander at GBDF, or his
designee, to collect the entire $350 balance of the filing
fee required by 28 U.S.C. § 1914 and to forward all
payments to the Clerk of the Court pursuant to the
installment provisions set forth in 28 U.S.C. §
Screening pursuant to 28 U.S.C. § 1915(e)(2) and §
Standard of Review
Plaintiff 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 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.
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
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.” Iqbal, 556
U.S. at 678 (internal quotation marks omitted);
Wilhelm, 680 F.3d at 1121.
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.”). 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,