1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FREDDY ZAVALA ODANGA Case No.: 3:19-cv-1292-JLS-RBM Inmate No. 1811340006, 12 ORDER: (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS; AND (2) DISMISSING 14 CIVIL ACTION AS FRIVOLOUS SHERIFFS OF SAN DIEGO, et al. 15 PURSUANT TO 28 U.S.C. Defendants. § 1915(e)(2)(B) 16

17 (ECF No. 3) 18 19 20 Plaintiff Freddy Zavala Odanga, proceeding pro se, and currently housed at the West 21 Valley Detention Center located in Rancho Cucamonga, California, has filed this civil 22 rights action under to 42 U.C.S. § 1983. Complaint (“Compl.”), ECF No. 1. Plaintiff did 23 not prepay the civil filing fee required by

(a); instead, he filed a Motion 24 to Proceed In Forma Pauperis (“IFP”) pursuant to

(a). See ECF No. 3. 25 I. Motion to Proceed IFP 26 All parties instituting any civil action, suit, or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 1 $400.1 See

(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes,

(9th Cir. 2007); Rodriguez v. 4 Cook,

(9th Cir. 1999). A prisoner granted leave to proceed IFP, 5 however, remains obligated to pay the entire fee in “increments” or “installments,” Bruce 6 v. Samuels,

(2016); Williams v. Paramo,

(9th Cir. 7 2015), regardless of whether the action is ultimately dismissed. See

(b)(1) 8 & (2); Taylor v. Delatoore,

(9th Cir. 2002). 9 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 10 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 12 § 1915(a)(2); Andrews v. King,

(9th Cir. 2005). From the certified 13 trust account statement, the Court assesses an initial payment of 20% of (a) the average 14 monthly deposits in the account for the past six months, or (b) the average monthly balance 15 in the account for the past six months, whichever is greater, unless the prisoner has no 16 assets. See

(b)(1);

(b)(4). The institution having custody 17 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 18 month’s income, in any month in which his account exceeds $10, and forwards those 19 payments to the Court until the entire filing fee is paid. See

(b)(2); Bruce, 20

. 21 In support of his request to proceed IFP, Plaintiff has submitted a copy of his inmate 22 trust account statement. See ECF No. 4;

(a)(2); S.D. Cal. CivLR 3.2; 23 Andrews,

. These documents show that Plaintiff had a negative balance 24 at the time of filing. Based on this accounting, the Court GRANTS Plaintiff’s request to 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27

(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 28 1 proceed IFP, and will assess no initial partial filing fee pursuant to

(b)(1). 2 See

(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 3 from bringing a civil action or appealing a civil action or criminal judgment for the reason 4 that the prisoner has no assets and no means by which to pay the initial partial filing fee.”); 5 Bruce,

; Taylor,

(finding that

(b)(4) acts 6 as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure 7 to pay . . . due to the lack of funds available to him when payment is ordered.”). The Court 8 will further direct the Watch Commander for the West Valley Detention Center, or their 9 designee, to collect the entire $350 balance of the filing fees required by

10 and forward them to the Clerk of the Court pursuant to the installment payment provisions 11 set forth in

(b)(1). See

12 II. Sua Sponte Screening per

(e)(2) and § 1915A 13 A. Standard of Review 14 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 15 answer screening pursuant to

(e)(2) and § 1915A(b). Under these statutes, 16 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 17 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 18 immune. See Lopez v. Smith,

, 1126–27 (9th Cir. 2000) (en banc) (discussing 19

(e)(2)); Rhodes v. Robinson,

(9th Cir. 2010) 20 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 21 targets of frivolous or malicious suits need not bear the expense of responding.’” 22 Nordstrom v. Ryan,

, 920 n.1 (9th Cir. 2014) (citations omitted). 23 “The standard for determining whether a plaintiff has failed to state a claim upon 24 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 25 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman,

(9th Cir. 27 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 28 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 1 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 2 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 3

(2009) (internal quotation marks omitted); Wilhelm,

. 4 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 5 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 6 Iqbal,

. “Determining whether a complaint states a plausible claim for relief 7 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 8 experience and common sense.”

The “mere possibility of misconduct” or “unadorned, 9 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 10 standard. Id.; see also Moss v. U.S. Secret Service,

(9th Cir. 2009). 11 B. Analysis 12 Although difficult to discern, Plaintiff’s Complaint appears to contain allegations 13 that there is a prostitution ring operating out the San Diego County Sheriff’s Department. 14 See generally Compl. Plaintiff also alleges Defendants are “levying war or acts of treason 15 against the U.S.” Id. at 2. 16 The Court finds Plaintiff’s entire Complaint frivolous. A pleading is “factual[ly] 17 frivolous[]” if “the facts alleged rise to the level of the irrational or the wholly incredible, 18 whether or not there are judicially noticeable facts available to contradict them.” Denton 19 v. Hernandez,

, 25–26 (1992). “[A] complaint, containing as it does both 20 factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either 21 in law or in fact. . . . [The] term ‘frivolous,’ when applied to a complaint, embraces not 22 only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke v.

U.S. 319, 325 (1989). When determining whether a complaint is frivolous, 24 the court need not accept the allegations as true, but must “pierce the veil of the complaint’s 25 factual allegations,”

, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or] 26 ‘delusional,’” Denton,

(quoting Neitzke, 490 U.S. at 328). 27 Here, the Court finds that Plaintiff’s claims “rise to the level of the irrational or the 28 wholly incredible,” Denton,

, and, as such, his Complaint requires dismissal 1 || as frivolous and without leave to amend. See Lopez v. Smith

, 1127 n.8 (9th 2 || Cir. 2000) (en banc) (noting that if a claim is classified as frivolous, “there is by definition 3 ||no merit to the underlying action and so no reason to grant leave to amend.”). 4 Conclusion and Order 5 Based on the foregoing, the Court: 6 1. GRANTS Plaintiff's Motion to Proceed IFP pursuant to

(a) 7 || ECF No. 3). 8 2. ORDERS the Watch Commander for the West Valley Detention Center, or 9 || their designee, to collect from Plaintiff's prison trust account the $350 filing fee owed in 10 case by collecting monthly payments from the account in an amount equal to twenty 11 || percent (20%) of the preceding month’s income and forward payments to the Clerk of the 12 ||Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. 13 } }§ 1915(b)2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME 14 |} AND NUMBER ASSIGNED TO THIS ACTION. 15 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 16 || Commander, West Valley Detention Center, 9500 Etiwanda Avenue, Rancho Cucamonga, 17 || California 91739. 18 4. DISMISSES Plaintiffs Complaint as frivolous pursuant to 28 U.S.C. 19 1915(e)(2) & § 1915A and without leave to amend; and 20 5. CERTIFIES that an IFP appeal from this Order would also be frivolous and 21 ||therefore, could not be taken in good faith pursuant to

(a)(3). See 22 || Coppedge v. United States,

(1962); Gardner v. Pogue,

(9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal 24 || would not be frivolous). 25 IT IS SO ORDERED. 26 ||Dated: October 7, 2019 tt f Le 27 on. Janis L. Sammartino 28 United States District Judge