1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 || JAMES PAUL ANDREW TORFASON, Case No. 3:22-cv-00680-JO-AHG 1 CDCR #BM9887, Plaintiff,| ORDER:
3 VS. (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS 14 || DEPARTMENT OF TREASURY, 15 || INTERNAL REVENUE SERVICE, (2) DISMISSING COMPLAINT 16 Defendants.) PURUSANT TO 28 U.S.C. 17 § 1915(e)(2)(B)(ii) and 1915A(b)(1) 18 19 Plaintiff James Paul Andrew Torfason (“Plaintiff’ or “Torfason’”) is a state prisone 20 incarcerated at R.J. Donovan State Prison (“RJD”). Proceeding pro se, he filed a civil right 21 |laction pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff also filed a Motio 22 || for Leave to proceed in forma pauperis (“IFP’’) pursuant to 28 U.S.C. § 1915(a). See EC 23 || No. 2. For the reasons stated below, the Court grants Plaintiffs motion to proceed IFP bu 24 || dismisses his complaint with leave to amend. 25 I. Motion to Proceed IFP 26 A party may initiate a civil action without prepaying the required filing fee if th 27 |} Court grants leave to proceed in forma pauperis based on indigency. 28 U.S.C. § 1915(a 28 || Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Plaintiffs who wish to procee
1 ||IFP must establish their inability to pay by filing an affidavit regarding their income and 2 ||assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). For prisoners to 3 establish inability to pay, the Prison Litigation Reform Act requires the submission of a 4 |\“certified copy of the [prisoner’s] trust fund account statement (or institutional equivalent) 5 || for .. . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 6 ||§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). Moreover, prisoners 7 proceed IFP must repay the entire fee in “increments” or “installments,” regardless of 8 || whether their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1) & (2); Bruce v. 9 Samuels, 577 U.S. 82, 83 (2016). 10 In support of his IFP motion, Plaintiff submitted a Prison Certificate issued by RJD 11 |/containing information about his prison trust account activity. See ECF No. 2 at 1; 12 || Andrews, 398 F.3d at 1119. This Certificate indicated that Plaintiff had an available balance 13 || of $0.00 at the time of filing, has an average monthly balance of $5.85, and an average of 14 || $6.16 in monthly deposits. Jd. Based on this financial information, the Court finds that 15 || Plaintiff has established an inability to pay and GRANTS Plaintiff’s motion to proceed 16 ||IFP. Plaintiff will be required to repay this amount in installments collected from his trust 17 account as set forth in 28 U.S.C. § 1915(b)(2). 18 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) 19 ||A. Legal Standards 20 Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), the Court must screen a 21 ||prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 22 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 23 || Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 24 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has 25 || failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 26 as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 27 || Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a 28 complaint to “contain sufficient factual matter . . . to state a claim to relief that is plausible
I on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) 2 || Wilhelm, 680 F.3d at 1121. While detailed factual allegations are not required 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere □□□□□□□□□□ 4 || statements, do not suffice” to state a claim. Iqbal, 556 US. at 678. The “mere possibilit 5 misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fal 6 || short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 57. 7 962, 969 (9th Cir. 2009). 8 ||B. Discussion 9 Plaintiff's 1983 claims against the United States Internal Revenue Service an 10 || Department of Treasury fail because he has not alleged that state actors, rather than federa 11 |/actors, violated his constitutional rights. “To establish § 1983 liability, a plaintiff mus 12 ||show both (1) deprivation of a right secured by the Constitution and laws of the Unitec 13 || States, and (2) that the deprivation was committed by a person acting under color of state 14 || law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012) (emphasis added) 15 ||Here, Plaintiff claims that the Department of Treasury and Internal Revenue □□□□□□□ 16 j/violated his constitutional rights by withholding his Coronavirus Aid, Relief, anc 17 ||Economic Security Act (“CARES”) check on the grounds that he is a registered se) 18 offender. Compl., ECF No. 1 at 3. Plaintiff brings this action against two federal agency 19 || defendants only, the Department of the Treasury and the Internal Revenue Service. He ha: 20 ||not identified any state actors who violated his rights. He, therefore, may not proceec 21 |/against these Defendants under § 1983. Tsao, 698 F.3d at 1138. 22 Even if the Court liberally construed Plaintiffs allegations as civil rights claim: 23 against federal actors under Bivens, his claims against these federal agencies would stil 24 || fail. Plaintiffs can bring constitutional violations claims against federal actors under Biven: 25 Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) 26 ||Such claims are the “federal analogue” to § 1983 claims against state actors. Hartman v 27 || Moore, 547 U.S. 250, 254, 255 n.2 (2006); Iqbal, 556 U.S. at 675—76. To state a Biven: 28 || claim, the plaintiff must allege facts showing that: (1) a right secured by the Constitutior
1 \lor laws of the United States was violated, and (2) the alleged deprivation was committed 2 a federal actor. Van Strum v.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 || JAMES PAUL ANDREW TORFASON, Case No. 3:22-cv-00680-JO-AHG 1 CDCR #BM9887, Plaintiff,| ORDER:
3 VS. (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS 14 || DEPARTMENT OF TREASURY, 15 || INTERNAL REVENUE SERVICE, (2) DISMISSING COMPLAINT 16 Defendants.) PURUSANT TO 28 U.S.C. 17 § 1915(e)(2)(B)(ii) and 1915A(b)(1) 18 19 Plaintiff James Paul Andrew Torfason (“Plaintiff’ or “Torfason’”) is a state prisone 20 incarcerated at R.J. Donovan State Prison (“RJD”). Proceeding pro se, he filed a civil right 21 |laction pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff also filed a Motio 22 || for Leave to proceed in forma pauperis (“IFP’’) pursuant to 28 U.S.C. § 1915(a). See EC 23 || No. 2. For the reasons stated below, the Court grants Plaintiffs motion to proceed IFP bu 24 || dismisses his complaint with leave to amend. 25 I. Motion to Proceed IFP 26 A party may initiate a civil action without prepaying the required filing fee if th 27 |} Court grants leave to proceed in forma pauperis based on indigency. 28 U.S.C. § 1915(a 28 || Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Plaintiffs who wish to procee
1 ||IFP must establish their inability to pay by filing an affidavit regarding their income and 2 ||assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). For prisoners to 3 establish inability to pay, the Prison Litigation Reform Act requires the submission of a 4 |\“certified copy of the [prisoner’s] trust fund account statement (or institutional equivalent) 5 || for .. . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 6 ||§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). Moreover, prisoners 7 proceed IFP must repay the entire fee in “increments” or “installments,” regardless of 8 || whether their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1) & (2); Bruce v. 9 Samuels, 577 U.S. 82, 83 (2016). 10 In support of his IFP motion, Plaintiff submitted a Prison Certificate issued by RJD 11 |/containing information about his prison trust account activity. See ECF No. 2 at 1; 12 || Andrews, 398 F.3d at 1119. This Certificate indicated that Plaintiff had an available balance 13 || of $0.00 at the time of filing, has an average monthly balance of $5.85, and an average of 14 || $6.16 in monthly deposits. Jd. Based on this financial information, the Court finds that 15 || Plaintiff has established an inability to pay and GRANTS Plaintiff’s motion to proceed 16 ||IFP. Plaintiff will be required to repay this amount in installments collected from his trust 17 account as set forth in 28 U.S.C. § 1915(b)(2). 18 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) 19 ||A. Legal Standards 20 Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), the Court must screen a 21 ||prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 22 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 23 || Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 24 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has 25 || failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 26 as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 27 || Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a 28 complaint to “contain sufficient factual matter . . . to state a claim to relief that is plausible
I on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) 2 || Wilhelm, 680 F.3d at 1121. While detailed factual allegations are not required 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere □□□□□□□□□□ 4 || statements, do not suffice” to state a claim. Iqbal, 556 US. at 678. The “mere possibilit 5 misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fal 6 || short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 57. 7 962, 969 (9th Cir. 2009). 8 ||B. Discussion 9 Plaintiff's 1983 claims against the United States Internal Revenue Service an 10 || Department of Treasury fail because he has not alleged that state actors, rather than federa 11 |/actors, violated his constitutional rights. “To establish § 1983 liability, a plaintiff mus 12 ||show both (1) deprivation of a right secured by the Constitution and laws of the Unitec 13 || States, and (2) that the deprivation was committed by a person acting under color of state 14 || law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012) (emphasis added) 15 ||Here, Plaintiff claims that the Department of Treasury and Internal Revenue □□□□□□□ 16 j/violated his constitutional rights by withholding his Coronavirus Aid, Relief, anc 17 ||Economic Security Act (“CARES”) check on the grounds that he is a registered se) 18 offender. Compl., ECF No. 1 at 3. Plaintiff brings this action against two federal agency 19 || defendants only, the Department of the Treasury and the Internal Revenue Service. He ha: 20 ||not identified any state actors who violated his rights. He, therefore, may not proceec 21 |/against these Defendants under § 1983. Tsao, 698 F.3d at 1138. 22 Even if the Court liberally construed Plaintiffs allegations as civil rights claim: 23 against federal actors under Bivens, his claims against these federal agencies would stil 24 || fail. Plaintiffs can bring constitutional violations claims against federal actors under Biven: 25 Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) 26 ||Such claims are the “federal analogue” to § 1983 claims against state actors. Hartman v 27 || Moore, 547 U.S. 250, 254, 255 n.2 (2006); Iqbal, 556 U.S. at 675—76. To state a Biven: 28 || claim, the plaintiff must allege facts showing that: (1) a right secured by the Constitutior
1 \lor laws of the United States was violated, and (2) the alleged deprivation was committed 2 a federal actor. Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Bivens claims 3 || can only be brought against federal officers in their individual capacity: these claims cannot 4 ||stand against the United States, or any of its departments, offices, or agencies. Daly- 5 || Murphy v. Winton, 837 F.2d 348, 355 (9th Cir. 1987); FDIC v. Meyer, 510 U.S. 471, 485 6 ||(1994). Here, Plaintiff brings suit against two federal agencies and departments rather than 7 \lindividual federal officials. Accordingly, he also fails to state a plausible claim for relief 8 under Bivens.' Iqbal, 556 U.S. at 678. 9 ||C. Leave to Amend 10 In light of Plaintiffs pro se status, the Court will grant Plaintiff leave to amend to 11 || address the deficiencies set forth in this Order. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 12 Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to 13 |}amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the 14 || deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v. 15 || Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 16 17 18 |{/// 19 20 21 ' Moreover, it appears that Defendants may have denied Plaintiff's request for a CARES Act payment because it was untimely. The deadline for individuals seeking an 23 ||economic impact payment under the CARES Act was December 31, 2020. See 26 U.S.C. A § 6428(f)(3)(A); Ross v. Bolin, No. 1:21-cv-01753-JLT-SAB, 2022 WL 1750943, at * 6 (E.D. Cal. May 31, 2022) (citing Scholl v. Mnuchin, et al., 489 F. Supp. 3d 1008, 1020 25 {|(N.D. Cal. 2020). In his complaint, Plaintiff alleges that he did not submit his request until 76 May 20, 2021, when he “put in the prison’s mail bag a 1040 tax form addressed to the Department of the Treasury Internal Revenue Service in Fresno, Ca. to receive the 27 Coronavirus Aid, Relief, and Economic Security Act (CARES Act) [check].” Compl., ECF No. | at 3. 28
l II. Conclusion and Order 2 For the reasons set forth above, the Court: 3 1) GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 2); 4 2) DIRECTS the Secretary of the CDCR, or her designee, to collect fror 5 || Plaintiff's prison trust account the $350 filing fee owed by collecting monthly payment 6 ||from Plaintiff's account in an amount equal to twenty percent (20%) of the precedin 7 |{month’s income and forwarding those payments to the Clerk of the Court each time th 8 ||amount in the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). AL! 9 ||PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBE! 10 || ASSIGNED TO THIS ACTION; 11 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Ma 12 Kathleen Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283 13 || 0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov; 14 4) DISMISSES Plaintiff's Complaint sua sponte in its entirety with leave t 15 |;amend based on his failure to state a claim upon which relief may be granted pursuant t 16 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). 17 5) GRANTS Plaintiff forty-five (45) days leave from the date of this Order i 18 || which to file an Amended Complaint correcting all the deficiencies of pleading identifie 19 || by the Court in this Order. If Plaintiff chooses to file an amended pleading correcting th 20 deficiencies outlined in this Order, his Amended Complaint must be complete in itsel 21 || without reference to his original pleading. Defendants not named and any claims not re 22 alleged in the Amended Complaint will be considered waived. See S.D. CAL. CIVLR 15.1 23 Roach Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading supersedes th 24 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claim 25 dismissed with leave to amend which are not re-alleged in an amended pleading may b 26 “considered waived if not repled.”).Plaintiff's Amended Complaint must be captioned a 27 “First Amended Complaint,” contain §.D. Cal. Civil Case No. 22-cv-00680-JO-AH( 28 ||in its caption, and comply both with FED. R. Civ. P. 8 and with $.D. CAL. CIVLR 8.2.a.
J The Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy 2 |/of its form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for Plaintiff's use and 3 ||to assist him in amending should he choose to do so. 4 IT IS SO ORDERED. 5 6 DATE: ee = i 7 Hon. iisook Ohta 8 Jnited States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28