United States District Court, S.D. California
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
AND DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(E)(2)(B) [ECF NO.
8]
Hon.
Cathy Ann Bencivengo, United States District Judge.
EVERETT
LUTHER (“Plaintiff”), formerly housed at the East
Mesa Reentry Facility (“EMRF”) in San Diego,
California, and proceeding pro se, filed a Complaint pursuant
to the Civil Rights Act, 42 U.S.C. § 1983 in the Eastern
District of California. (ECF No. 1.) Plaintiff did not prepay
the civil filing fee required by 28 U.S.C. § 1914(a) at
the time he submitted his Complaint in the Eastern District,
but instead filed a Motion to Proceed In Forma
Pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915(a). (See ECF No. 2.)
On
August 2, 2019, United States District Judge Deborah Barnes
ordered the case transferred to the Southern District of
California pursuant to 28 U.S.C. § 1406(a) finding it in
the interest of justice to do so because Plaintiff's
“claim arose in San Diego County” and therefore
“should have been filed” here. (See ECF
No. 4 at 2.)
On
August 6, 2019, this Court denied Plaintiff's Motion to
Proceed IFP on the grounds that he did not attach a certified
copy of his inmate trust account activity or his inmate trust
account statement report for the 6-month period immediately
preceding the filing of his Complaint. (ECF No. 7 at 3 citing
28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2). Plaintiff
has now filed a renewed Motion to Proceed IFP along with
notifying the Court he is no longer incarcerated.
(See ECF Nos. 8, 9.) Thus, the requirement to submit
his inmate trust account statement is no longer applicable
because Plaintiff is not incarcerated.
I.
Motion to Proceed IFP
All
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).[1] An 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
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
Section 1915(a)(2) requires all persons seeking to proceed
without full prepayment of fees to file an affidavit that
includes a statement of all assets possessed and demonstrates
an inability to pay. See Escobedo v. Applebees, 787
F.3d 1226, 1234 (9th Cir. 2015).
Plaintiff
has now filed a notice of change of address that appears to
indicate he is no longer incarcerated and therefore, the
Court will presume Plaintiff is not subject to those
provisions of § 1915 that apply only to prisoners, and
review his IFP applications just as it would those filed by
any other person. See e.g., Agyeman v. I.N.S., 296
F.3d 871, 886 (9th Cir. 2002) (“[T]he statutory term
‘prisoner' is limited to an individual who is
‘currently detained as a result of accusation,
conviction, or sentence for a criminal offense,
'” and therefore “does not encompass a civil
detainee for purposes of the PLRA.”) (citing Page
v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000)
(emphasis original).
Based
on the affidavits Plaintiff has now provided, the Court finds
he is unable to pay the fees or post securities required to
maintain this action, and GRANTS his Motion
to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
(ECF No. 8).
II.
Sua Sponte Screening pursuant to 28 U.S.C. §
1915(e)(2)
A.
Standard of Review
Nevertheless,
because he is proceeding IFP, Plaintiff's
Complaint is subject to sua sponte review, and mandatory
dismissal, if it is “frivolous, malicious, fail[s] to
state a claim upon which relief may be granted, or seek[s]
monetary relief from a defendant immune from such
relief.” See 28 U.S.C. § 1915(e)(2)(B);
Coleman v. Tollefson, 135 S.Ct. 1759, 1763 (2015)
(pursuant to 28 U.S.C. § 1915(e)(2) “the court
shall dismiss the case at any time if the court determines
that-(A) the allegation of poverty is untrue; or (B) the
action or appeal-(i) is frivolous or malicious; [or] (ii)
fails to state a claim on which relief may be
granted.”); Lopez v. Smith, 203 F.3d 1122,
1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not
only permits, but requires a district court to dismiss an in
forma pauperis complaint that fails to state a
claim.”); Calhoun v. Stahl, 254 F.3d 845, 845
(9th Cir. 2001) (per curiam) (holding that “the
provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited
to prisoners.”).
The
purpose of § 1915's screening provisions are
“‘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)).
C.
Plaintiff's Allegations
Plaintiff
claims that the California Department of Corrections and
Rehabilitation (“CDCR”), the County of San Diego,
the San Diego County Sheriff's Department, and its
Sheriff, William Gore, have denied him earned conduct
credits, and thus are forcing him to “serv[e] a longer
sentence in county jail” in violation of the Fourteenth
Amendment. (Compl. at 2-6.) Plaintiff seeks injunctive relief
and $500, 000 in damages. (Id.at 6.)
C.
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