David Rivas v. MCC San Diego; Jason Burganson, Correctional Officer

CourtDistrict Court, S.D. California
DecidedOctober 17, 2025
Docket3:25-cv-00806
StatusUnknown

This text of David Rivas v. MCC San Diego; Jason Burganson, Correctional Officer (David Rivas v. MCC San Diego; Jason Burganson, Correctional Officer) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David Rivas v. MCC San Diego; Jason Burganson, Correctional Officer, (S.D. Cal. 2025).

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 DAVID RIVAS, Case No.: 25-cv-00806-AJB-BLM BOP #14267-298, 10 ORDER GRANTING MOTION TO Plaintiff, 11 PROCEED IN FORMA PAUPERIS vs. AND DISMISSING COMPLAINT 12 FOR FAILING TO STATE A CLAIM MCC San Diego; 13 PURSUANT TO 28 U.S.C. § 1915(e)(2) JASON BURGANSON, Correctional AND 28 U.S.C. § 1915A(b) 14 Officer,

15 Defendants. [Doc. No. 4] 16 17 18 Plaintiff David Rivas, proceeding pro se and while incarcerated at the Metropolitan 19 Correctional Center (“MCC”) in San Diego, filed a letter entitled as a “petition” with the 20 Clerk of Court on April 2, 2025. (See Doc. No. 1.) Because his petition seeks $3 million in 21 damages from the MCC and Officer Jason Burganson based on claims of having been 22 deprived of his personal property and subjected to cruel and unusual conditions of 23 confinement at MCC, the Court construes Plaintiff’s petition as a complaint arising under 24 general federal question jurisdiction pursuant to Bivens v. Six Unknown Federal Narcotics 25 Agents, 403 U.S. 388 (1971).1 26

27 1 Courts have a duty to construe pro se pleadings and motions liberally, Bernhardt v. Los Angeles County, 28 1 Because Plaintiff failed to pay the $405 civil filing fee required by 28 U.S.C. 2 § 1914(a), the Court dismissed the case on May 12, 2025, but granted him leave to re-open 3 it by either paying the fee in full or filing a motion to proceed in forma pauperis (“IFP”) 4 pursuant to 28 U.S.C. § 1915(a). (See Doc. No. 2 at 3‒4.) Plaintiff complied by filing an 5 IFP motion from USP Coleman II, where he appears to have been transferred and where 6 he remains incarcerated.2 (See Doc. No. 4.) 7 For the reasons explained, the Court now GRANTS Plaintiff leave to proceed IFP, 8 but DISMISSES his complaint sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2) and 9 1915A(b) because it fails to state a claim upon which Bivens relief may be granted. 10 I. MOTION TO PROCEED IFP 11 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 $405 filing fee.3 13 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire fee at 14 the time of filing only if the court grants the plaintiff leave to proceed IFP pursuant to 28 15 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); cf. 16 Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP 17 application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the fee[s] 18 [a]re paid.”). 19 “While the previous version of the IFP statute granted courts the authority to waive 20 fees for any person ‘unable to pay[,]’ . . . the PLRA [Prison Litigation Reform Act] 21

22 of the claim raised in order to survive [. . . ] dismiss[al].” Alvarez v. Hill, 518 F.3d 1152, 1157‒58 (9th 23 Cir. 2008).

24 2 See https://www.bop.gov/inmateloc/(BOP Register Number 14267298) (last visited Oct. 14, 2025). The 25 Court may take judicial notice of public records available on online inmate locators. See United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial notice of Bureau of Prisons’ inmate locator). 26 3 In addition to the $350 statutory fee, civil litigants filing suit are required to pay an additional 27 administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The administrative portion of the fee does not apply to 28 1 amended the IFP statute to include a carve-out for prisoners: under the current version of 2 the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the 3 prisoner shall be required to pay the full amount of a filing fee.’” Hymas, 73 F.4th at 767 4 (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured timeline for 5 collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)-(2)). 6 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 7 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 8 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 9 the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 10 1119 (9th Cir. 2005). Using this financial information, the court “shall assess and when 11 funds exist, collect, . . . an initial partial filing fee,” which is “calculated based on ‘the 12 average monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 13 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 14 payments of 20 percent of the preceding month’s income credited to the prisoner’s 15 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). Thus, while 16 prisoners may qualify to proceed IFP without having to pay the statutory filing fee in one 17 lump sum, they nevertheless remain obligated to pay the full amount due in monthly 18 payments. See Bruce v. Samuels, 577 U.S. 82, 84 (2016); Taylor v. Delatoore, 281 F.3d 19 844, 847 (9th Cir. 2002); 28 U.S.C. §§ 1915(b)(1) & (2). 20 In support of his IFP Motion, Plaintiff has submitted a copy of his BOP trust account 21 statement, as well as a prison certificate authorized by a USP Coleman II accounting 22 official. (See Doc. No. 4 at 4, 6.) See also 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; 23 Andrews, 398 F.3d at 1119. These documents show Plaintiff had $405.98 in average 24 monthly deposits, carried an average balance of $267.43, and had an available balance of 25 $61.37 in his trust account at time of filing. (See Doc. No. 4 at 4, 6.) 26 Based on this showing, the Court GRANTS Plaintiff’s Motion to Proceed IFP, 27 assesses a partial initial filing fee of $81.19 pursuant to 28 U.S.C. § 1915(b)(1), and 28 DIRECTS the Warden of USP Coleman II to collect this fee and forward it to the Clerk of 1 the Court unless Plaintiff “has no means to pay it” at the time this Order is executed. Bruce, 2 577 U.S. 84–85.

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David Rivas v. MCC San Diego; Jason Burganson, Correctional Officer, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-rivas-v-mcc-san-diego-jason-burganson-correctional-officer-casd-2025.