Odanga v. Sheriffs of San Diego

Filing 5

ORDER: (1) Granting 3 Motion to Proceed in forma pauperis; and (2) Dismissing civil action as frivolous pursuant to 28 USC 1915(e)(2)(B). Signed by Judge Janis L. Sammartino on 10/7/2019. (cc: Watch Commander, West Valley Detention Center, Rancho Cucamonga CA). (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FREDDY ZAVALA ODANGA
Inmate No. 1811340006,

ORDER: (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS; AND (2) DISMISSING
CIVIL ACTION AS FRIVOLOUS
PURSUANT TO 28 U.S.C.
§ 1915(e)(2)(B)

Plaintiff,

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vs.

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Case No.: 3:19-cv-1292-JLS-RBM

SHERIFFS OF SAN DIEGO, et al.
Defendants.

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(ECF No. 3)

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Plaintiff Freddy Zavala Odanga, proceeding pro se, and currently housed at the West

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Valley Detention Center located in Rancho Cucamonga, California, has filed this civil

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rights action under to 42 U.C.S. § 1983. Complaint (“Compl.”), ECF No. 1. Plaintiff did

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not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, he filed a Motion

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to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 3.

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I.

Motion to Proceed IFP

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All parties instituting any civil action, suit, or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A prisoner granted leave to proceed IFP,

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however, remains obligated to pay the entire fee in “increments” or “installments,” Bruce

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v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir.

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2015), regardless of whether the action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1)

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& (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the

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6-month period immediately preceding the filing of the complaint.”

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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monthly deposits in the account for the past six months, or (b) the average monthly balance

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in the account for the past six months, whichever is greater, unless the prisoner has no

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assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

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of the prisoner then collects subsequent payments, assessed at 20% of the preceding

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month’s income, in any month in which his account exceeds $10, and forwards those

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payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce,

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136 S. Ct. at 629.

28 U.S.C.

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In support of his request to proceed IFP, Plaintiff has submitted a copy of his inmate

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trust account statement. See ECF No. 4; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;

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Andrews, 398 F.3d at 1119. These documents show that Plaintiff had a negative balance

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at the time of filing. Based on this accounting, the Court GRANTS Plaintiff’s request to

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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.
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proceed IFP, and will assess no initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1).

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See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited

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from bringing a civil action or appealing a civil action or criminal judgment for the reason

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that the prisoner has no assets and no means by which to pay the initial partial filing fee.”);

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Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts

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as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure

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to pay . . . due to the lack of funds available to him when payment is ordered.”). The Court

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will further direct the Watch Commander for the West Valley Detention Center, or their

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designee, to collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914

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and forward them to the Clerk of the Court pursuant to the installment payment provisions

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set forth in 28 U.S.C. § 1915(b)(1). See id.

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II.

Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

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answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes,

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the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which

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is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

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immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing

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28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

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(discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the

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targets of frivolous or malicious suits need not bear the expense of responding.’”

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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted).

Standard of Review

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

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1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

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2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure
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12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

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[is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

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the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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B.

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Although difficult to discern, Plaintiff’s Complaint appears to contain allegations

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that there is a prostitution ring operating out the San Diego County Sheriff’s Department.

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See generally Compl. Plaintiff also alleges Defendants are “levying war or acts of treason

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against the U.S.” Id. at 2.

Analysis

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The Court finds Plaintiff’s entire Complaint frivolous. A pleading is “factual[ly]

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frivolous[]” if “the facts alleged rise to the level of the irrational or the wholly incredible,

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whether or not there are judicially noticeable facts available to contradict them.” Denton

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v. Hernandez, 504 U.S. 25, 25–26 (1992). “[A] complaint, containing as it does both

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factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either

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in law or in fact. . . . [The] term ‘frivolous,’ when applied to a complaint, embraces not

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only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke v.

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Williams, 490 U.S. 319, 325 (1989). When determining whether a complaint is frivolous,

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the court need not accept the allegations as true, but must “pierce the veil of the complaint’s

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factual allegations,” id. at 327, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or]

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‘delusional,’” Denton, 504 U.S. at 33 (quoting Neitzke, 490 U.S. at 328).

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Here, the Court finds that Plaintiff’s claims “rise to the level of the irrational or the

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wholly incredible,” Denton, 504 U.S. at 33, and, as such, his Complaint requires dismissal
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as frivolous and without leave to amend. See Lopez v. Smith 203 F.3d 1122, 1127 n.8 (9th

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Cir. 2000) (en banc) (noting that if a claim is classified as frivolous, “there is by definition

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no merit to the underlying action and so no reason to grant leave to amend.”).

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III.

Conclusion and Order

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Based on the foregoing, the Court:

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1.

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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

(ECF No. 3).
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ORDERS the Watch Commander for the West Valley Detention Center, or

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their designee, to collect from Plaintiff’s prison trust account the $350 filing fee owed in

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this case by collecting monthly payments from the account in an amount equal to twenty

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percent (20%) of the preceding month’s income and forward payments to the Clerk of the

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Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C.

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§ 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME

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AND NUMBER ASSIGNED TO THIS ACTION.

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3.

DIRECTS the Clerk of the Court to serve a copy of this Order on Watch

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Commander, West Valley Detention Center, 9500 Etiwanda Avenue, Rancho Cucamonga,

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California 91739.

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4.

DISMISSES Plaintiff’s Complaint as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2) & § 1915A and without leave to amend; and
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CERTIFIES that an IFP appeal from this Order would also be frivolous and

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therefore, could not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See

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Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548,

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550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal

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would not be frivolous).

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IT IS SO ORDERED.
Dated: October 7, 2019

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