Olea v. San Diego County Sheriff

Filing 3

ORDER Denying 2 Motion to Proceed In Forma Pauperis and Dismissing Case Without Prejudice: Plaintiff if granted forty five (45) days from the date this Order is Filed to either: (1) pay the entire $350 filing fee, or (2) file a new Motion to P roceed IFP, which includes a certified copy of his trust account statement for the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b). Signed by Judge Larry Alan Burns on 12/4/09. (All non-registered users served via U.S. Mail Service, Blank Motion for IFP sent to Plaintiff with copy of Order)(pdc) (kaj).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 D e f e n d a n ts . 19 20 21 22 23 24 25 26 27 28 H e rm e lin d o Olea ("Plaintiff"), currently incarcerated at the Richard J. Donovan C o rre c tio n a l Facility located in San Diego, California, and proceeding pro se, has submitted a c iv il rights Complaint pursuant to 28 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing f e e mandated by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma P a u p e ris ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. /// /// /// S A N DIEGO COUNTY SHERIFF, et al., vs. H E R M E L IN D O OLEA, C D C R #AA5972, P l a in tif f , O R D E R DENYING MOTION TO P R O C E E D IN FORMA PAUPERIS A N D DISMISSING CASE W I T H O U T PREJUDICE P U R S U A N T TO 28 U.S.C. § 1915(a) [Doc. No. 2] C iv il No. 0 9 -2 4 3 9 LAB (BLM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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I. M OTION TO PROCEED IFP A ll parties instituting any civil action, suit or proceeding in a district court of the United S t a te s , except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U .S .C . § 1914(a). An action may proceed despite a party's failure to pay only if the party is g ra n te d leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See A n d r e w s v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1 1 7 7 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, remain obligated to pay th e entire fee in installments, regardless of whether the action is ultimately dismissed for any re a s o n . See 28 U.S.C. § 1915(b)(1) & (2). Prisoners seeking leave to proceed IFP must also submit a "certified copy of the trust fund a c c o u n t statement (or institutional equivalent) for the prisoner for the 6-month period im m e d ia te ly preceding the filing of the complaint...." 28 U.S.C. § 1915(a)(2). From the c e rtif ie d trust account statement, the Court must assess an initial payment of 20% of (a) the a v e ra g e monthly deposits in the account for the past six months, or (b) the average monthly b a la n c e in the account for the past six months, whichever is greater, unless the prisoner has no a s s e ts . See 28 U.S.C. § 1915(b)(1), (4); see also Taylor v. Delatoore, 281 F.3d 844, 850 (9th C ir. 2002). Thereafter, the institution having custody of the prisoner must collect subsequent p a ym e n ts , assessed at 20% of the preceding month's income, in any month in which the p ris o n e r's account exceeds $10, and forward those payments to the Court until the entire filing f e e is paid. See 28 U.S.C. § 1915(b)(2). W h ile Plaintiff has filed a Motion to Proceed IFP in this matter pursuant to 28 U.S.C. § 1915(a), he has not attached a certified copy of his prison trust account statement for the 6m o n th period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S .D . CAL. CIVLR 3.2. Section 1915(a)(2) clearly mandates that prisoners "seeking to bring a c iv il action ...without prepayment of fees ... shall submit a certified copy of the trust fund a c co u n t statement (or institutional equivalent) ... for the 6-month period immediately preceding th e filing of the complaint." 28 U.S.C. § 1915(a)(2) (emphasis added). -2-

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W ith o u t Plaintiff's trust account statement, the Court is simply unable to assess the a p p ro p ria te amount of the filing fee required to initiate this action. See 28 U.S.C. § 1915(b)(1). T h e re f o re , Plaintiff's Motion to Proceed IFP must be DENIED. II. C ONCLUSION AND ORDER F o r the reasons set forth above, IT IS ORDERED that: (1) (2) P la in t if f' s Motion to Proceed IFP [Doc. No. 2] is DENIED. T h i s action is DISMISSED without prejudice for failure to prepay the $350 filing

f ee mandated by 28 U.S.C. § 1914(a), and for failure to successfully move to proceed IFP p u rs u a n t to 28 U.S.C. § 1915(a). (3) P la in tif f if GRANTED forty five (45) days from the date this Order is Filed to

e ith e r : (1) pay the entire $350 filing fee, or (2) file a new Motion to Proceed IFP, which in c lu d e s a certified copy of his trust account statement for the 6-month period preceding the filin g of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b). IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with a C o u rt-a p p ro v e d form "Motion and Declaration in Support of Motion to Proceed IFP" in this m a tte r. If Plaintiff neither pays the $350 filing fee in full nor sufficiently completes and files th e attached Motion to Proceed IFP, together with a certified copy of his prison trust account sta tem e n t within 45 days, this action shall remained closed without further Order of the Court.

D A T E D : December 4, 2009

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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