Alve v. Edwards et al

Filing 3

ORDER denying 2 Motion to Proceed in forma pauperis and Dismissing Case without prejudice. This action is Dismissed without prejudice for failure to prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a). Plaintiff is Granted forty f ive (45) days from the date this Order is Filed to pay the entire $350 filing fee. If Plaintiff fails to pay the $350 filing fee in full within 45 days, this action shall remain closed without further Order of the Court. Signed by Judge Dana M. Sabraw on 7/14/10. (All non-registered users served via U.S. Mail Service)(lao)

- P O R Alve v. Edwards et al

Doc. 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. M OTION TO PROCEED IFP A ll parties instituting any civil action, suit or proceeding in a district court of the United S ta te s , except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 -110cv1389 DMS (POR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

A L E J A N D R O ALVE, CDCR #B-77176 P la in tif f , vs. D . EDWARDS, et al., D e f e n d a n ts .

Civil No.

1 0 -1 3 8 9 DMS (POR)

O R D E R DENYING MOTION TO P R O C E E D IN FORMA PAUPERIS A N D DISMISSING CASE WITHOUT P R E J U D IC E [D o c . No. 2]

Plaintiff, an inmate currently incarcerated at the Calipatria State Prison, located in C a lip a tria , California, and proceeding pro se, has filed a civil action pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, h e has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [D o c. No. 2].

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Dockets.Justia.com

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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). "Under the PLRA, all prisoners who file IFP civil actions must pay the fu ll amount of the filing fee," regardless of whether the action is ultimately dismissed for any re a s o n . See Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002) (citing 28 U.S.C.

§ 1915(b)(1) & (2)). In order to comply with the PLRA, prisoners seeking leave to proceed IFP must also s u b m it a "certified copy of the trust fund account statement (or institutional equivalent) for the p ris o n e r for the 6-month period immediately preceding the filing of the complaint...." 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court assesses an initial payment o f 20% of (a) the average monthly deposits in the account for the past six months, or (b) the a v e ra g e monthly balance in the account for the past six months, whichever is greater, unless the p ris o n e r has no assets. See 28 U.S.C. § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, th e institution having custody of the prisoner must collect subsequent payments, assessed at 20% o f the preceding month's income, in any month in which the prisoner's account exceeds $10, and f o rw a rd those payments to the Court until the entire filing fee is paid. § 1915(b)(2). In this matter, Plaintiff has submitted a certified copy of his inmate trust account that s h o w s a current balance of $2,775.19 [Doc. No. 2]. If the Court were to calculate an initial p a r tia l filing fee, it would exceed the civil filing fee that is owed to commence this action. Thus, d u e to Plaintiff's ability to pay the filing fee, Plaintiff's Motion to Proceed IFP is 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 See 28 U.S.C.

fe e mandated by 28 U.S.C. § 1914(a). -2-

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10cv1389 DMS (POR)

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(3)

P la in t if f is GRANTED forty five (45) days from the date this Order is Filed to pay

th e entire $350 filing fee. If Plaintiff fails to pay the $350 filing fee in full within 45 days, this a c tio n shall remain closed without further Order of the Court.1

D A T E D : July 14, 2010

H O N . DANA M. SABRAW U n ite d States District Judge

Plaintiff is cautioned that if he chooses to proceed further with this action by paying the full civil filing fee required by 28 U.S.C. § 1914(a), the complaint he has already submitted will be screened and may be dismissed pursuant to 28 U.S.C. § 1915A(b); see Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (discussing sua sponte screening required by 28 U.S.C.§ 1915A(b)).
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