United States District Court, S.D. California
ORDER: 1) GRANTING PLAINTIFF'S MOTION TO PROCEED
IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(A) [ECF
NO. 2] AND 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)
Lariy Alan Burns Chief United States District Judge.
Al Khafati, (“Plaintiff”), a prisoner at the
Correctional Training Facility (“CTF”) in
Soledad, California, filed a pro se civil rights complaint
pursuant to 42 U.S.C. § 1983 alleging that Patrick
Covello, Warden of the Richard J. Donovan Correctional
Facility (“RJD”) in San Diego, Brantley Choate,
Director of the Division of Rehabilitation Programs at the
California Department of Corrections and Rehabilitation
(“CDCR”), M. Biter, Chief Deputy Warden of the
CTF, and M. Voong, Chief of the Office of Appeals at the CDCR
(collectively, “Defendants”) violated his Eighth
and Fourteenth Amendment rights by denying Plaintiff testing
that would have allowed him to access certain educational
programs. Additionally, Plaintiff alleges that Warden Covello
violated his Eighth and Fourteenth Amendment rights when
Covello's subordinates placed Plaintiff in administrative
segregation for more than six months because he is from Iraq.
(See Compl., ECF No. 1, at 3.)
did not pay the fee required by 28 U.S.C. § 1914(a) when
he filed his Complaint, instead filing a Motion to Proceed In
Forma Pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915(a). (See ECF No. 2.)
Plaintiff's 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, 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.
support of his IFP Motion, Plaintiff has submitted a
certified copy of his trust account statement pursuant to 28
U.S.C. § 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2.
Andrews, 398 F.3d at 1119. The Court has reviewed
Plaintiff's trust account activity, as well as the
attached prison certificate verifying his available balances.
(See ECF No. 3, at 1.) These documents show that
although he carried an average monthly balance of $31.87 and
had $10.05 in average monthly deposits to his trust account
for the six months preceding the filing of this action,
Plaintiff had an available balance of just $4.53 at the time
of filing. (See Id. at 1-2.)
the Court GRANTS Plaintiff's Motion to
Proceed IFP (ECF No. 2), but declines to impose the initial
$6.37 partial filing fee pursuant to 28 U.S.C. §
1915(b)(1) because his prison certificate indicates he may
currently have “no means to pay it.” 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.”);
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.”).
Instead, the Court directs the Secretary of the CDCR, or his
designee, to collect the entire $350 balance of the filing
fees required by 28 U.S.C. § 1914 and to forward them to
the Clerk of the Court pursuant to the installment payment
provisions set forth in 28 U.S.C. § 1915(b)(1).
Initial Screening pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A
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 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. 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. Bd. of Regents of the
Univ. 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); Schneider v.
Cal. Dep't of Corrs., 151 F.3d 1194, 1197 n.1 (9th
Cir. 1998); see also 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.”).