1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEROME MITCHELL, Case No.: 21-cv-01781-BAS-BLM

CDCR #AL-1076,

12

ORDER:

Plaintiff, 13 vs. 1) GRANTING MOTION TO 14

PROCEED IN FORMA PAUPERIS

15 (ECF No. 2);

CDCR, SILVA, GALAVIZ, RAMIREZ,

16

M. POLADIAN, 2) DISMISSING COMPLAINT

17 Defendants. WITHOUT PREJUDICE AND WITH

LEAVE TO AMEND

18 19 20 Plaintiff Jerome Mitchell (“Plaintiff” or “Mitchell”) is currently incarcerated at 21 California State Prison, Sacramento, located in Sacramento, California (“CSP-SAC”). 22 Proceeding pro se, he has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF 23 No. 1.) Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); 24 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 25 § 1915(a). (ECF No. 2.) 26 // 27 // 28 // 1 I. Request to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $402. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, 577 U.S. 82, 85 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 10 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 11 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly balance 18 in the account for the past six months, whichever is greater, unless the prisoner has no 19 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 20 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 21 month’s income, in any month in which his account exceeds $10, and forwards those 22 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 23 577 U.S. at 85. 24 Plaintiff has submitted a Prison Certificate signed by a CSP-SAC Accounting 25 Officer attesting as to his monthly balances and deposits. (See ECF No. 2 at 4.) These 26 statements show: (1) Plaintiff had an average of $33.33 in monthly deposits to his account; 27 (2) Plaintiff maintained an average balance of $7.27 in his account over the six month 28 period preceding the filing of his current Complaint; and (3) Plaintiff had an available 1 balance of $10.00 to his credit at CSP-SAC as of October 6, 2021. See id.; 28 U.S.C. 2 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 3 civil action or appealing a civil action or criminal judgment for the reason that the prisoner 4 has no assets and no means by which to pay the initial partial filing fee.”); Bruce, 577 U.S. 5 at 85; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 6 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 7 the lack of funds available to him when payment is ordered”). 8 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 9 assesses an initial partial filing fee of $6.66, pursuant to 28 U.S.C. Section 1915(b)(1)(A). 10 The Court directs the Secretary of the CDCR, or her designee, to collect this initial filing 11 fee only if sufficient funds are available in Plaintiff’s account at the time this Order is 12 executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 13 prohibited from bringing a civil action or appealing a civil action or criminal judgment for 14 the reason that the prisoner has no assets and no means by which to pay the initial partial 15 filing fee”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 16 Section 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case 17 based solely on a “failure to pay . . . due to the lack of funds available to him when payment 18 is ordered”). The Court further directs the Secretary of the CDCR, or her designee, to 19 collect the remaining balance of the filing fees required by 28 U.S.C. Section 1914 and to 20 forward it to the Clerk of the Court pursuant to the installment payment provisions set forth 21 in 28 U.S.C. Section 1915(b)(1). 22 23 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) 24 A. Standard of Review 25 Because Mitchell is a prisoner, his Complaint requires a pre-answer screening 26 pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b). Under these statutes, the Court 27 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, that is frivolous, 28 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 1 || Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 2 ||§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 3 ||U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous 4 ||or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 5 920 n.1 (9th Cir. 2014) (citation omitted). 6 “The standard for determining whether a plaintiff has failed to state a claim upon 7 || which relief can be granted under § 1915(e)(2)(B)(11) is the same as the Federal Rule of 8 || Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 9 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 10 |}2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 11 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12 || 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 13 true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 14 || 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 15 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 16 |}elements of a cause of action, supported by mere conclusory statements, do not suffice.” 17 || [gbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 18 . . . a context-specific task that requires the reviewing court to draw on its judicial 19 || experience and common sense.” /d. The “mere possibility of misconduct” or “unadorned, 20 || the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 21 standard. /d.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 22 B. 42U.S.C. § 1983 23 “Section 1983 creates a private right of action against individuals who, acting under 24 || color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 25 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 26 |/rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 27 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citation 28 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a

1 right secured by the Constitution and laws of the United States, and (2) that the deprivation 2 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 3 698 F.3d 1128, 1138 (9th Cir. 2012). 4 B. Plaintiff’s Factual Allegations 5 Mitchell filed a civil rights lawsuit pursuant to 42 U.S.C. § 1983 in this Court on 6 August 31, 2018, which was given case number 3:18-cv-02044-TWR-AGS. (Compl., ECF 7 No. 1 at 3; see Mitchell v. Silva, et al., S.D. Cal. case no. 3:18-cv-02044-TWR-AGS.) The 8 parties in that case reached a settlement agreement in December of 2020. (See id. at ECF 9 No. 75; Compl., ECF No. 1 at 8–11.) Mitchell claims he was to receive a settlement in the 10 amount of $6,000 and that as part of settlement negotiations, he was told he had a restitution 11 order in the amount of $3,145.24, which he understood would have to be satisfied before 12 he could receive any settlement funds. (Compl., ECF No. 1 at 3.) He alleges that when 13 the California Department of Corrections and Rehabilitation received the $6,000 settlement 14 check, the entire amount was used to satisfy another restitution order of which he was not 15 aware and which was not disclosed to him during settlement negotiations. (Id.) According 16 to Mitchell, none of the $6,000 was used to satisfy the $3,145.24 restitution amount. (Id.) 17 Mitchell contends that the terms of the settlement agreement have been violated. (Id.) 18 C. Discussion 19 Mitchell has not stated a § 1983 claim because his allegations do not plausibly allege 20 he has been deprived of a right secured by the Constitution. Tsao, 698 F.3d at 1138.; Iqbal, 21 556 U.S. at 678. “Standing alone, a settlement agreement cannot serve as a substantive 22 basis for a § 1983 claim for relief because it does not create ‘rights, privileges, or 23 immunities secured by the Constitution and [federal] laws.’” Atwood v. Days, No. CV 20- 24 00623-PHX-JAT (JZB), 2021 WL. 100860, at *7 (D. Ariz. Jan. 12, 2021) (quoting Green 25 v. McKaskle, 788 F.2d 1116, 1123–24 (5th Cir. 1986); Klein v. Corda, No. 3:09-cv-0387- 26 LRH-RAM, 2010 WL 2802740, at *2 (D. Nev. Jul 14, 2010) (stating that “[T]he violation 27 of a settlement agreement entered into in a civil rights action is not itself a separate civil 28 rights violation”). “Section 1983 provides a vehicle for plaintiffs to seek redress for 1 injuries to their own constitutional rights, not to enforce prophylactic measures or technical 2 requirements of state law, policy, remedial decree, or settlement agreements.” Rader v. 3 County of Placer, No. 2:19-cv-1265 AC, 2021 WL 3662411, at *5 (E.D. Cal. Aug. 18, 4 2021); see also Anderson v. Mendoza, No. 2:17-cv-1244 KHM DB P, 2018 WL 6528429, 5 at *6 (E.D. Cal. Dec. 12, 2018). In any event, it appears from the documents Mitchell 6 provides in support of his Complaint that as part of the settlement agreement, Mitchell was 7 told that “CDCR is obligated by California Penal Code section 2085.8 to collect any 8 amounts owed by a prisoner under a restitution or fine order . . . .” (Compl., ECF No. 1 9 at 8.) 10 11 II. Conclusion and Order 12 For the foregoing reasons, the Court issues the following Order: 13 1) The Court GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 14 U.S.C. § 1915(a) (ECF No. 2). 15 2) The Court DIRECTS the Secretary of the CDCR or her designee, to collect 16 from Mitchell’s inmate trust account the $6.66 initial filing fee assessed in this Order if 17 those fees are available in Plaintiff’s account and to thereafter garnish whatever remains of 18 the $350 filing fee owed in this case by garnishing monthly payments in an amount equal 19 to twenty percent (20%) of the preceding month’s income and forwarding those payments 20 to the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 21 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE 22 NAME AND NUMBER ASSIGNED TO THIS ACTION. 23 3) The Court DIRECTS the Clerk of the Court to serve a copy of this Order by 24 U.S. Mail on Kathleen Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, 25 California, 94283-0001, or in the alternative by forwarding an electronic copy to 26 trusthelpdesk@cdcr.ca.gov. 27 4) The Court DISMISSES the Complaint WITHOUT PREJUDICE for failing 28 to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1). To | || have the case reopened, Plaintiff must, no later than January 4, 2022, file a First Amended 2 ||Complaint that cures the pleading deficiency outlined in this Order. 3 4 IT IS SO ORDERED. 5 6 || Dated: November 9, 2021 ( | nm ly 2 (Hithar 7 Hon. Cynthia A. Bashant United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7