United States District Court, S.D. California
KORY T. O'BRIEN, CDCR #AM-1378, Plaintiff,
SAJIB SAHA; DAVID CLAYTON; MARGARET DEEL, M.D., Defendants.
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS, AND (2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE
PURSUANT TO 28 U.S.C. § 1915(d) AND FED. R. CIV. P.
4(c)(3) (ECF No. 2)
Janis L. Sammartino United States District Judge
Kory T. O'Brien, proceeding pro se and
incarcerated at Richard J. Donovan Correctional Facility
(“RJD”) in San Diego, California, has filed a
civil rights Complaint pursuant to 42 U.S.C. § 1983.
See ECF No. 1 (“Compl.”). Plaintiff did
not prepay the $400 civil filing fee required by 28 U.S.C.
§ 1914(a) at the time of filing; instead, he has filed a
Motion to Proceed in Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a).
See ECF No. 2 (âMot.â).
TO PROCEED IN FORMA PAUPERIS
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).
Prisoners who are granted leave to proceed IFP, however,
remain obligated to pay the entire fee in
“increments” or “installments, ”
Bruce v. Samuels, 577 U.S., 136 S.Ct. 627, 629
(2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th
Cir. 2015), 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
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 (“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), (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 California Department of Corrections and Rehabilitation
(“CDCR”) Inmate Statement Report as well as a
Prison Certificate completed by an accounting officer at RJD.
See ECF No. 3 at 1-5; see also 28 U.S.C.
§ 1915(a)(2); S.D. Cal. CivLR 3.2; King, 398
F.3d at 1119. These statements show that Plaintiff has
carried an average monthly balance of $95.62 and had $100.60
in average monthly deposits to his account over the six-month
period immediately preceding the filing of his Complaint and
$10.92 available balance on the books at the time of filing.
See ECF No. 3 at 1, 3. Based on this accounting, the
Court GRANTS Plaintiff's Motion and
ASSESSES his initial partial filing fee to
be $20.12 pursuant to 28 U.S.C. § 1915(b)(1).
Plaintiff's available balance was insufficient to satisfy
this initial fee at the time of filing, however, the Court
will direct the Secretary of the CDCR, or his designee, to
collect the initial $20.12 fee assessed only if sufficient
funds are available in Plaintiff's account at the time
this Order is executed. See 28 U.S.C. §
1915(b)(4) (“In 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.”); Bruce, 136 S.Ct. at 630;
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”). 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).
PURSUANT TO 28 U.S.C. §§ 1915(E)(2) AND
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 that 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
Serv., 572 F.3d 962, 969 (9th Cir. 2009).
currently pleaded, the Court finds that Plaintiff's
Complaint contains “sufficient factual matter, accepted
as true, ” to state First and Eighth Amendment claims
for relief that are “plausible on [their] 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; see
also Iqbal, 556 U.S. at 678; Estelle v. Gamble,
429 U.S. 97, 104 (1976) (prison officials' deliberate
indifference to an inmate's serious medical needs
constitutes cruel and unusual punishment in violation of the
Eighth Amendment); Rhodes v. Robinson, 408 F.3d 559,
567-68 (9th Cir. 2005) (“Within the prison context, a
viable claim of First Amendment retaliation entails five
basic elements: (1) An assertion that a state actor took some
adverse action against an inmate (2) because of (3) that
prisoner's protected conduct, and that such action (4)
chilled the inmate's / / / exercise of his First
Amendment rights, and (5) the action did not reasonably
advance a legitimate correctional
the Court will direct the U.S. Marshal to effect service of
summons and 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 ...