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)
CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE
Cesar Santamaria Muniz, a prisoner at Salinas Valley State
Prison in Soledad, California, filed a pro se civil rights
complaint pursuant to 42 U.S.C. § 1983 alleging that
Warden D. Paramo and Lieutenant J. Cuevas violated
Plaintiff's Fifth and Fourteenth Amendment rights during
prison disciplinary proceedings that occurred while Plaintiff
was housed at the Richard J. Donovan Correctional Facility
(“RJD”) in San Diego, California. (See
“Compl., ” ECF No. 1.)
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.
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 submitted a certified
copy of his trust account statement pursuant to 28 U.S.C.
§ 1915(a)(2) and Local Rule 3.2. The Court has reviewed
Plaintiff's trust account activity, as well as the
attached prison certificate verifying his available balances.
(See ECF No. 2, at 4-7.) These documents show that
although Plaintiff carried an average monthly balance of
$1.71 and had $3.77 in average monthly deposits to his trust
account for the six months preceding the filing of this
action, he had an available balance of just $0.02 at the time
of filing. (See Id. at 4-6.)
the Court GRANTS Plaintiff's Motion to
Proceed IFP (ECF No. 2) but declines to impose the initial
$0.37 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). 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). 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), 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.”).
Complaint focuses on disciplinary proceedings that began
after a search of the cell Plaintiff shared with another
inmate allegedly turned up a cell phone and two
inmate-created weapons hidden in Plaintiff's mattress.
(See Compl. ¶ 3.) After the search, Plaintiff
and his cellmate were taken to administrative segregation.
(Id.) Although the district attorney declined to