United States District Court, S.D. California
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS [ECF NO. 2]; AND (2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 28 U.S.C.
§ 1915(D) AND FED. R. CIV. P. 4(C)(3)
Larry A. Burns, Chief Judge United States District Court
Wilson (“Plaintiff”), currently incarcerated at
the California Correctional Institution (“CCI”)
located in Tehachapi, California, has filed a civil rights
complaint pursuant to 42 U.S.C. § 1983. Plaintiff did
not prepay the civil filing fee required by 28 U.S.C. §
1914(a) when he filed his Complaint; instead, he filed a
Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Plaintiff
alleges he was subjected to excessive force in violation of
his Eighth Amendment rights when he was previous housed at
the Richard J. Donovan Correctional Facility
(“RJD”). (ECF No 1 at 1, 3-4.)
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). However,
prisoners who are granted leave to proceed IFP remain
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 their action is ultimately dismissed.
See 28 U.S.C. § 1915(b)(1) & (2);
Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.
1915(a)(2) also 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 CDCR Inmate Statement Report. See ECF No. 2 at
8; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;
Andrews, 398 F.3d at 1119. His CDCR Inmate Statement
Report shows he has a current available balance of $0.50 at
the time of filing. See ECF No. 2 at 8. Therefore,
the Court GRANTS Plaintiff's Motion to
Proceed IFP (ECF No. 2), declines to exact any initial filing
fee because his prison certificates indicate he may have
“no means to pay it, ” Bruce, 136 S.Ct.
at 629, and directs the Secretary of the California
Department of Corrections and Rehabilitation
(“CDCR”), or their designee, to instead collect
the entire $350 balance of the filing fees required by 28
U.S.C. § 1914 and forward them to the Clerk of the Court
pursuant to the installment payment provisions set forth in
28 U.S.C. § 1915(b)(1).
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
Plaintiff 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 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 “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
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
currently pleaded, the Court finds Plaintiff's Complaint
contains “sufficient factual matter, accepted as true,
” to state Eighth Amendment claims for relief that are
“plausible on its face, ” Iqbal, 556
U.S. at 678, and therefore, sufficient to survive the
“low threshold” set for sua sponte screening
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
See Wilhelm, 680 F.3d at 1123; Iqbal, 556
U.S. at 678; Hudson v. McMillian, 503 U.S. 1, 5
(1992) (unnecessary and wanton infliction of pain violates
the Cruel and Unusual Punishments Clause of the Eighth
Amendment); Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)
(per curiam) (for claims arising out of the use of excessive
physical force, the issue is “whether force was applied
in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.”) (citing
Hudson, 503 U.S. at 7).
the Court will direct the U.S. Marshal to effect service of
summons Plaintiff's Complaint on his behalf. See
28 U.S.C. § 1915(d) (“The officers of the court
shall issue and serve all process, and perform all duties in
[IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (“[T]he
court may order that service be made by a United States
marshal or deputy marshal ... if the plaintiff is authorized
to proceed in forma pauperis under 28 U.S.C. §