Anderson v. San Diego Police Department et al

Filing 3

ORDER Denying Motion To Proceed In Forma Pauperis (Doc. 2 ) And Dismissing Case Without Prejudice Pursuant To 28 U.S.C. Section 1915(a): Plaintiff is granted 45 days from the date this Order is Filed to either: (1) pay the entire $350 filing fe e, or (2) file a new Motion to Proceed 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. Section 1915(a)(2) and S.D. Cal. CivLR 3.2(b). If Plaintiff neither pays the $350 filing fee in full nor sufficiently completes and files the attached Motion to Proceed IFP, together with a certified copy of his prison trust account statement within 45 days, this action shall remained closed without further Order of the Court. Signed by Judge William Q. Hayes on 2/4/2010. (All non-registered users served via U.S. Mail Service; per Order, a blank Motion to Proceed IFP form also sent to Plaintiff.) (mdc) (av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Plaintiff, an inmate currently incarcerated at the Richard J. Donovan Correctional Facility, 22 located in San Diego, California, and proceeding pro se, has filed a civil action pursuant to 42 23 U.S.C. § 1983. 24 Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, 25 he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) 26 [Doc. No. 2]. 27 / / / 28 / / /
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

RAYMOND ANDERSON, CDCR #AB-4975 Plaintiff, vs. SAN DIEGO POLICE DEP'T, et al., Defendants.

Civil No.

10-0089 WQH (RBB)

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. § 1915(a) [Doc. No. 2]

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I. MOTION TO PROCEED IFP All parties instituting any civil action, suit or proceeding in a district court of the United

4 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 5 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay only if the party is 6 granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See 7 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 8 1177 (9th Cir. 1999). "Under the PLRA, all prisoners who file IFP civil actions must pay the 9 full amount of the filing fee," regardless of whether the action is ultimately dismissed for any 10 reason. See Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002) (citing 28 U.S.C. 11 § 1915(b)(1) & (2)). "[T]he PLRA fee filing requirements pass constitutional muster." Id. at 12 848. 13 In order to comply with the PLRA, prisoners seeking leave to proceed IFP must also

14 submit a "certified copy of the trust fund account statement (or institutional equivalent) for the 15 prisoner for the 6-month period immediately preceding the filing of the complaint...." 28 U.S.C. 16 § 1915(a)(2). From the certified trust account statement, the Court assesses an initial payment 17 of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the 18 average monthly balance in the account for the past six months, whichever is greater, unless the 19 prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, 20 the institution having custody of the prisoner must collect subsequent payments, assessed at 20% 21 of the preceding month's income, in any month in which the prisoner's account exceeds $10, and 22 forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 23 § 1915(b)(2). 24 While Plaintiff has filed a Motion to Proceed IFP in this matter pursuant to 28 U.S.C. 25 § 1915(a), he has not attached a certified copy of his prison trust account statement for the 626 month period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 27 S.D. CAL. CIVLR 3.2. Section 1915(a)(2) clearly mandates that prisoners "seeking to bring a 28
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1 civil action ...without prepayment of fees ... shall submit a certified copy of the trust fund 2 account statement (or institutional equivalent) ... for the 6-month period immediately preceding 3 the filing of the complaint." 28 U.S.C. § 1915(a)(2) (emphasis added). 4 Without Plaintiff's trust account statement, the Court is simply unable to assess the

5 appropriate amount of the filing fee required to initiate this action. See 28 U.S.C. § 1915(b)(1). 6 Therefore, Plaintiff's Motion to Proceed IFP must be DENIED. 7 8 9 10 11 (1) (2) II. CONCLUSION AND ORDER For the reasons set forth above, IT IS ORDERED that: Plaintiff's Motion to Proceed IFP [Doc. No. 2] is DENIED. This action is DISMISSED without prejudice for failure to prepay the $350 filing

12 fee mandated by 28 U.S.C. § 1914(a), and for failure to successfully move to proceed IFP 13 pursuant to 28 U.S.C. § 1915(a). 14 (3) Plaintiff if GRANTED forty five (45) days from the date this Order is Filed to

15 either: (1) pay the entire $350 filing fee, or (2) file a new Motion to Proceed IFP, which 16 includes a certified copy of his trust account statement for the 6-month period preceding the 17 filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b). 18 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with a

19 Court-approved form "Motion and Declaration in Support of Motion to Proceed IFP" in this 20 matter. If Plaintiff neither pays the $350 filing fee in full nor sufficiently completes and files the 21 attached Motion to Proceed IFP, together with a certified copy of his prison trust account 22 statement within 45 days, this action shall remained closed without further Order of the Court. 23 24 25 26 27 28
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DATED: February 4, 2010 WILLIAM Q. HAYES United States District Judge

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