United States District Court, S.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED IN
FORMA PAUPERIS; [DOC. NO. 2] GRANTING PLAINTIFF'S MOTIONS
TO AMEND; [DOC. NOS. 6, 8] 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.
William Dawes, currently incarcerated at the San Diego County
Sheriff Department's Central Jail (“SDCJ”) 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.
support of his IFP Motion, Plaintiff has submitted a Prison
Certificate signed by a Sheriff's Detentions Lieutenant,
together with a certified copy of his San Diego Sheriff's
Department Statement Report showing his trust account
activity at the time of filing. See Doc. No. 2 at
5-6; see also 28 U.S.C. § 1915(a)(2); S.D. Cal.
CivLR 3.2; Andrews, 398 F.3d at 1119. These
statements show that Plaintiff carried an average monthly
balance of $69.93, and had $115.00 in average monthly
deposits to his account over the 6-month period immediately
preceding the filing of his Complaint. He had an available
balance of $459.93 at the time of filing. See Doc.
No. 5 at 6.
on this accounting, the Court GRANTS
Plaintiff's Motion to Proceed IFP and assesses his
initial partial filing fee to be $23.00 pursuant to 28 U.S.C.
§ 1915(b)(1). 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
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,
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).
the “[c]ourt 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); Fed.R.Civ.P. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading for all
purposes.”); Schneider v. California Dept. of
Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
Plaintiff's Allegations and Rule 8
initial matter, the Court finds that Plaintiff's
Complaint fails to comply with Federal Rule of Civil
Procedure 8. Rule 8 provides that in order to state a claim
for relief in a pleading it must contain “a short and
plain statement of the grounds for the court's
jurisdiction” and “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(1) & (2); see
McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996)
(upholding Rule 8(a) dismissal of complaint that was
“argumentative, prolix, replete with redundancy, and
largely irrelevant”); Cafasso, United States ex
rel. v. General Dynamics C4 Systems, Inc., 637 F.3d
1047, 1059 (9th Cir. 2011) (citing cases upholding Rule 8
dismissals where pleadings were “verbose, ”
“confusing, ” “distracting, ambiguous, and
unintelligible, ” “highly repetitious, ”
and comprised of “incomprehensible rambling, ”
while noting that “[o]ur district courts are busy
enough without having to penetrate a tome approaching the
magnitude of War and Peace to discern a
plaintiff's claims and allegations.”).
is also admonished that he must comply with Local Rule 8.2
which requires, in part, that “[c]omplaints by
prisoners under the Civil Rights Act, 42 U.S.C. § 1983,
must be legibly written or typewritten on forms supplied by
the court” and “[a]dditional pages not to exceed
fifteen (15) in number may be included with the court
approved form complaint, provided the form is completely
filled ion to the extent applicable.” S.D. CivLR
8.2(a). Here, Plaintiff has filed a forty three (43) page
Complaint which well exceeds the number of pages permitted by
the local rule.
also refers to a number of claims but does not allege any
facts to form the basis of the claims and often does not
actually name how any of the named Defendants were
responsible for the alleged violations. To the extent that
the Court is able to determine the nature of some of the
claims, they will be addressed below.