Johnson v. Dept. Veteran Affairs
Filing
4
ORDER Denying 2 Motion for Leave to Proceed in Forma Pauperis; Dismissing Civil Action for Failing to State a Claim; Denying 2 as Moot Petitioner's Request for Court-Appointed Counsel; and Granting Petitioner Leave to Amend Within 45 Days. Signed by Judge Gonzalo P. Curiel on 4/19/17. (All non-registered users served via U.S. Mail Service)(dlg)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
Rwayne Johnson,
Case No.: 3:17-cv-00071-GPC-KSC
Petitioner,
12
13
v.
14
ORDER:
Department of Veterans Affairs,
15
1) DENYING PETITIONER’S
REQUEST TO PROCEED IN
FORMA PAUPERIS;
Respondent.
16
2) DISMISSING CIVIL ACTION FOR
FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. §
1915(e)(2)(B)(ii);
17
18
19
3) DENYING AS MOOT
PETITIONER’S REQUEST FOR
COURT-APPOINTED COUNSEL
20
21
22
AND
23
(4) GRANTING PETITIONER
LEAVE TO AMEND WITHIN 45
DAYS
24
25
26
[ECF Nos. 2, 3.]
27
28
1
3:17-cv-00071-GPC-KSC
On January 12, 2017, Petitioner Rwayne Johnson (“Petitioner”), a state prisoner
1
2
proceeding pro se,1 initiated this action against the Department of Veterans Affairs
3
(“Respondent”). (Dkt. No. 1.) Petitioner concurrently filed a motion to proceed in forma
4
pauperis (“IFP”) and a motion for court-appointed counsel. (Dkt. Nos. 2, 3.) For the
5
reasons set forth below, the Court DENIES Petitioner’s motion to proceed in forma
6
pauperis, DISMISSES Petitioner’s Petition for Writ of Mandamus for failure to state a
7
claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and DISMISSES AS MOOT
8
Petitioner’s request for court-appointed counsel.
9
10
DISCUSSION
I.
11
Motion for Leave to Proceed In Forma Pauperis
All parties instituting any civil action, suit or proceeding in a district court of the
12
United States, except an application for writ of habeas corpus, must pay a filing fee of
13
$400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
14
prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
15
§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
16
Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
17
proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
18
Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d
19
1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed,
20
see 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
21
Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
22
“certified copy of the trust fund account statement (or institutional equivalent) for . . . the
23
24
25
26
27
28
1
On the Civil Cover Sheet submitted with his Complaint, Petitioner indicated that the nature of his suit
is a “prisoner petition.” (Dkt. No. 1 at 5.) Petitioner’s return address is the same as the William P.
Clements Prison located in Amarillo, Texas. (Dkt. No. 1 at 7.)
2
In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50.
See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14
(eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to
proceed IFP. Id.
2
3:17-cv-00071-GPC-KSC
1
6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
2
§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
3
trust account statement, the Court assesses an initial payment of 20% of (a) the average
4
monthly deposits in the account for the past six months, or (b) the average monthly
5
balance in the account for the past six months, whichever is greater, unless the prisoner
6
has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution
7
having custody of the prisoner then collects subsequent payments, assessed at 20% of the
8
preceding month’s income, in any month in which his account exceeds $10, and forwards
9
those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);
10
Bruce, 136 S. Ct. at 629.
11
Here, Petitioner has not provided the Court with sufficient information to
12
determine Petitioner’s financial status. Petitioner has not submitted a certified copy of
13
his prison trust fund account statement. Accordingly, the Court DENIES Petitioner’s
14
request to proceed in forma pauperis.
15
II.
16
Sua Sponte Screening
Notwithstanding Petitioner’s IFP status or the payment of any filing fees, the Court
17
must review complaints filed by all persons proceeding IFP and must sua sponte dismiss
18
any complaint, or any portion of a complaint, which is frivolous, malicious, fails to state
19
a claim, or seeks damages from defendants who are immune. See 28 U.S.C. §
20
1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (§
21
1915(e)(2)).
22
All complaints must contain “a short and plain statement of the claim showing that
23
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are
24
not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
25
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
26
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining
27
whether a complaint states a plausible claim for relief [is] . . . a context-specific task that
28
requires the reviewing court to draw on its judicial experience and common sense.” Id.
3
3:17-cv-00071-GPC-KSC
1
The “mere possibility of misconduct” falls short of meeting this plausibility standard.
2
Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
3
“When there are well-pleaded factual allegations, a court should assume their
4
veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
5
Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
6
(“[W]hen determining whether a complaint states a claim, a court must accept as true all
7
allegations of material fact and must construe those facts in the light most favorable to
8
the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
9
§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6).”).
10
However, while the court “ha[s] an obligation where the petitioner is pro se,
11
particularly in civil rights cases, to construe the pleadings liberally and to afford the
12
petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
13
2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not
14
“supply essential elements of claims that were not initially pled,” Ivey v. Bd. of Regents of
15
the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
16
Petitioner seeks a writ of mandamus under 28 U.S.C. § 1361 to compel the
17
Department of Veterans Affairs to pay him 30% of his service-connected benefits since
18
1981. (Dkt. No. 1 at 1–3.) Issuance of a writ of mandamus is considered an
19
“extraordinary remedy, to be reserved for extraordinary situations.” Gulfstream
20
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). Because the writ of
21
mandamus is “one of the most potent weapons in the judicial arsenal,” Petitioner has the
22
burden to satisfy three conditions before a writ may be issued on his behalf: (1) Petitioner
23
has no other adequate means to attain the desired relief; (2) Petitioner’s right to issuance
24
of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under
25
the circumstances. Cheney v. United States Dist. Court, 542 U.S. 367, 380–81 (2004).
26
Here, Petitioner provides no factual allegations explaining why he is entitled to any
27
form of relief, much less the issuance of a writ of mandamus. Petitioner does not address
28
whether he has other adequate means to attain the desired relief, fails to provide
4
3:17-cv-00071-GPC-KSC
1
allegations plausibly showing that his right to issuance of the writ is clear and
2
indisputable, and offers no information showing that issuance of the writ would be
3
appropriate under the circumstances.3
4
Because Petitioner does not supply any factual allegations explaining why he is
5
entitled to relief, his complaint fails to adequately state a claim under 28 U.S.C. §
6
1915(e)(2)(B). See FED. R. CIV. P. 8(a)(2); Cheney, 542 U.S. at 380-81; Iqbal, 556 U.S.
7
at 678. Accordingly, the Court DISMISSES Petitioner’s Petition for Writ of Mandamus
8
for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
9
III.
10
Motion for Court-Appointed Counsel
Petitioner concurrently filed a motion seeking court-appointed counsel. (Dkt. No.
11
3.) In light of the Court’s dismissal of this civil action pursuant to 28 U.S.C.
12
§1915(e)(2)(B)(ii), the Court DENIES AS MOOT Petitioner’s motion for court-
13
appointed counsel.
14
CONCLUSION
15
For the foregoing reasons, the Court DENIES Petitioner’s motion to proceed in
16
forma pauperis, sua sponte DISMISSES Petitioner’s Petition for Writ of Mandamus for
17
failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §
18
1915(e)(2)(B)(ii), and DENIES AS MOOT Petitioner’s request for court-appointed
19
counsel.
20
The Court GRANTS Petitioner forty-five (45) days leave from the date of this
21
Order in which to re-open the case. To re-open the case, Petitioner shall, within forty-
22
five days of this Order:
23
1. File an Amended Petition for Writ of Mandamus which cures all of the deficiencies
24
of pleading described in this Order. If Petitioner elects to file an Amended Petition
25
26
27
28
To the extent Petitioner wishes to appeal a Board of Veterans’ Appeals decision regarding his serviceconnected benefits, the United States Court of Appeals for Veterans Claims has exclusive jurisdiction to
review such decisions. See 38 U.S.C. § 7252(a).
3
5
3:17-cv-00071-GPC-KSC
1
for Writ of Mandamus, it must be complete by itself without reference to the
2
original pleading. See S.D. CAL. CIV. LR 15.1; Hal Roach Studios, Inc. v. Richard
3
Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading
4
supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.
5
2012) (noting that claims dismissed with leave to amend which are not re-alleged
6
in an amended pleading may be “considered waived if not repled.”).
7
2. Petitioner must file the appropriate filing fee in conjunction with an Amended
8
Petition for Writ of Mandamus. If Petitioner elects to file a motion to proceed in
9
forma pauperis instead of paying the filing fee, Petitioner must comply with the
10
requirements of 28 U.S.C. § 1915(a)(2) and submit a certified copy of his trust
11
fund account statement for the 6-month period preceding the filing of his Amended
12
Petition for Writ of Mandamus. The Clerk of Court is directed to mail Petitioner a
13
blank motion to proceed in forma pauperis form together with a copy of this Order.
14
3. If Petitioner fails to file an Amended Petition for Writ of Mandamus within the
15
time provided, the Court will enter a final Order dismissing this civil action based
16
both on Petitioner’s failure to state a claim upon which relief can be granted
17
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), and his failure to
18
prosecute in compliance with a Court order requiring amendment. See Lira v.
19
Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take
20
advantage of the opportunity to fix his complaint, a district court may convert the
21
dismissal of the complaint into dismissal of the entire action.”).
22
IT IS SO ORDERED.
23
Dated: April 19, 2017
24
25
26
27
28
6
3:17-cv-00071-GPC-KSC
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?