United States District Court, S.D. California
1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (ECF NO. 2),
2) DISMISSING DEFENDANTS AND CLAIMS PURSUANT TO 28 U.S.C.
§ 1915(E)(2) AND 28 U.S.C. § 1915A(B), AND 3)
DIRECTING U.S. MARSHAL TO EFFECT SERVICE UPON DEFENDANTS
RAMIREZ, RODRIGUEZ, HAMPTON, LEGGE, GAYLE, AND SHEPHERD
PURSUANT TO 28 U.S.C. § 1915(D) AND FED. R. CIV. P.
ANTHONY J. BATTAGLIA, UNITED STATES DISTRICT JUDGE
John Hamilton (“Plaintiff”), incarcerated at the
California Correctional Institution in Tehachapi, California,
has filed a pro se civil rights Complaint pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). (See ECF No. 1,
Compl.) Plaintiff claims that while he was incarcerated at
Richard J. Donovan State Prison (“RJD”) in San
Diego, California, prison officials ignored or dismissed his
repeated requests for medical care for chest pains. (See
generally Id. at 5-10.)
did not prepay the $400 civil filing fee required by 28
U.S.C. Section 1914(a) at the time of filing, and instead
filed a Motion to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. Section 1915(a).
(See ECF No. 2.)
Motion 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. Section 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 has submitted a
certified copy of his trust account statement pursuant to 28
U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2.
Andrews, 398 F.3d at 1119. 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 he carried an average monthly balance of $47.26 and
had $90.22 in average monthly deposits to his trust account
for the six months preceding the filing of this action,
Plaintiff had an available balance of just $0.05 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
$18.04 partial filing fee pursuant to 28 U.S.C. Section
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. Section 1914 and to forward them
to the Clerk of the Court pursuant to the installment payment
provisions set forth in 28 U.S.C. Section1915(b)(1).
Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2)
and Section 1915A(b)
Standard of Review
Plaintiff is a prisoner and is proceeding IFP, his Complaint
requires a pre-answer screening pursuant to 28 U.S.C. Section
1915(e)(2) and Section 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. Section
1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004
(9th Cir. 2010) (discussing 28 U.S.C. Section 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 Section
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 Section 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).
Plaintiff's Factual Allegations
alleges that over the course of several days in October 2017,
he told correctional officers and other staff at RJD that he
was experiencing chest pains. (See Compl. at 5-10.)
These complaints were shared with Defendants Shepard, Legge,
Rodriguez, and Hampton, all of whom are correctional
officers, as well as with Defendant Erica Gayle, a doctor,
and Defendants Sierra Ramirez and Richard Jumba, described
variously as psychologists or psychology technicians
(collectively, the “Staff Defendants”). (See
Id. at 5-7.) During this period, Plaintiff also
allegedly received medical records from earlier in the month
indicating that he had a heart condition. (See Id.
at 5.) Despite his claimed chest pains and documented heart
condition, Plaintiff contends ...