Brass v. Montgomery
| Docket Number | 22-cv-1466-BAS-MSB |
| Decision Date | 10 March 2023 |
| Parties | GARY BRASS, Jr., CDCR #G-05645 Plaintiff, v. W.L. MONTGOMERY, Warden; MARIO DE LA TORRE, Correctional Officer; LT. FAVELA; A. CANEDO, Defendant. |
| Court | U.S. District Court — Southern District of California |
(1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF NO. 7);
(2) DISMISSING CLAIMS AGAINST DEFENDANTS MONTGOMERY FAVELA, AND CANEDA FOR FAILURE TO STATE A CLAIM UNDER 28 U.S.C. §§ 1915(E)(2) & 1915A; AND
(3) GRANTING PLAINTIFF LEAVE TO AMEND
While he was incarcerated at Corcoran State Prison, Plaintiff Gary Brass, Jr. (“Brass” or “Plaintiff”) filed the instant civil rights action pursuant to 42 U.S.C. § 1983 in the Eastern District of California.[1](See Compl., ECF No. 1.) Brass claims a correctional officer violated his constitutional rights in April 2022, when he was housed at Calipatria State Prison (“CAL”). (Id. at p. 3-4.) On September 28, 2022, United States Magistrate Judge Gary S. Austin, Eastern District of California, found the events underlying Brass' action arose in Imperial County, which is located in the Southern District of California, and, therefore, transferred this matter to this Court. (See ECF No. 2.)
Plaintiff did not pay the $402 civil and administrative filing fee required by 28 U.S.C. § 1914(a) at the time he filed his Complaint. Instead, he applied to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (IFP App., ECF No. 7.)
A party who institutes a civil action, suit, or proceeding in a district court of the United States, except for an application for a writ of habeas corpus, must pay a filing fee of $402.[2] 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, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 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).
Section 1915(a)(2) requires a prisoner who seeks 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), (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 the prisoner's 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).
Under 28 U.S.C. § 1915, indigency is the benchmark for whether a plaintiff qualifies for IFP status. The determination of indigency falls within the district court's sound discretion. Cal. Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (), rev'd on other grounds, 506 U.S. 194 (1993). It is well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his poverty pay or give security for costs . . . and still be able to provide himself and the dependents with the necessities of life.” Id. at 339. However, “the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense . . . the remonstrances of a suitor who is financially able, in whole or in part, to pull his own oar.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).
In support of his IFP Application, Brass submits a copy of his California Department of Corrections and Rehabilitation (“CDCR”) Inmate Trust Account Statement Report, as well as a Prison Certificate completed by an accounting officer at SVSP. (See IFP App. at 4-8.) Brass' Trust Account Statement Report shows he maintained an average monthly balance of $777.64 and had average monthly deposits of $777.64 credited to his account at SVSP over the 6-month period immediately preceding the filing of his Complaint. His available balance at the time of filing was $777.64.
Brass has made a satisfactory showing of indigency for the purpose of 28 U.S.C. § 1915(a). Therefore, the Court GRANTS Brass' IFP Application and (ECF No. 7) and assesses an initial partial filing fee of $155.53 pursuant to 28 U.S.C. § 1915(b)(1). However, this initial fee need be collected only if sufficient funds are available in Brass' account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (); Taylor, 281 F.3d at 850 ( 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 Brass and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(1).
Because Brass is a prisoner and is proceeding IFP, his Complaint requires a preliminary 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. 2012)).
“The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure [(“Rule”)] 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) (). 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) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
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.” 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).
Brass alleges that on April 21, 2022-at which time he was housed in CAL- Defendant Mario De La Torre, a correctional officer, performed a body search on him. (Compl. at p. 3.) Brass avers De La Torre “fondled” and “inappropriately touched him” (Id. at pp. 3, 5.) Brass told De La Torre that the search was “making [him] feel uncomfortable.” (Id. at p. 3.) Brass claims De La Torre became “frustrated” and, “without warning[,] grabbed [Brass'] right hand causing [it to] fracture.” (Id.) De La Torre then forcibly bent Brass' entire arm behind his back, “causing severe pain.” (Id.) Brass “broke free from the hold” and ran toward the showers, but De La Torre grabbed Brass by the shirt and pushed him into the shower door, allegedly causing Brass to suffer a concussion. (Id.)
The following day, Brass filed a grievance against De La Torre alleging excessive force. (Compl. at p. 4.) He also separately filed a complaint against De La Torre pursuant to the Prison Rape Elimination Act. (Id.) Shortly thereafter, De La Torre initiated prison disciplinary charges against Brass for “battery with [serious bodily...
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