Sekerke v. Wallace et al

Filing 5

ORDER denying 2 Motion for Leave to Proceed in forma pauperis and dismissing case without prejudice pursuant to 28 USC 1915(a). Plaintiff is granted 45 days leave to either pay the entire $350 filing fee, or file a new Motion to Proceed IFP. (blank motion to proceed ifp mailed to plaintiff).. Signed by Judge John A. Houston on 09/30/11. (All non-registered users served via U.S. Mail Service)(jpp)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KEITH WAYNE SEKERKE
CDCR #V-15331,

Civil No.
Plaintiff,

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vs.

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PETER WALLACE; J. GARCIA; R. COBB;
E. GARCIA,

11cv1978 JAH (NLS)

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

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Defendants.

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Plaintiff, a state prisoner at the California Correctional Institution located in Tehachapi,

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California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C.

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§ 1983.

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Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead,

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he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)

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[ECF No. 2].

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I.

M OTION TO P ROCEED IFP

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All parties instituting any civil action, suit or proceeding in a district court of the United

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States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28

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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

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granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See

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11cv1978 JAH (NLS)

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Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176,

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1177 (9th Cir. 1999). “Under the PLRA [Prison Litigation Reform Act], all prisoners who file

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IFP civil actions must pay the full amount of the filing fee,” regardless of whether the action is

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ultimately dismissed for any reason. See Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002)

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(citing 28 U.S.C. § 1915(b)(1) & (2)).

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In order to comply with the PLRA, prisoners seeking leave to proceed IFP must also

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submit a “certified copy of the trust fund account statement (or institutional equivalent) for the

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prisoner for the 6-month period immediately preceding the filing of the complaint....” 28 U.S.C.

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§ 1915(a)(2). From the certified trust account statement, the Court assesses an initial payment

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of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the

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average monthly balance in the account for the past six months, whichever is greater, unless the

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prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter,

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the institution having custody of the prisoner must collect subsequent payments, assessed at 20%

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of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and

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forward those payments to the Court until the entire filing fee is paid.

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§ 1915(b)(2).

See 28 U.S.C.

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While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), he has

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not attached a certified copy of his prison trust account statement for the 6-month period

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immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. C AL.

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C IVLR 3.2. Section 1915(a)(2) clearly mandates that prisoners “seeking to bring a civil action

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...without prepayment of fees ... shall submit a certified copy of the trust fund account statement

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(or institutional equivalent) ... for the 6-month period immediately preceding the filing of the

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complaint.” 28 U.S.C. § 1915(a)(2) (emphasis added).

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Without Plaintiff’s trust account statement, the Court is simply unable to assess the

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appropriate amount of the filing fee which is statutorily required to initiate the prosecution of

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this action. See 28 U.S.C. § 1915(b)(1).

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11cv1978 JAH (NLS)

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II.

C ONCLUSION AND O RDER

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For the reasons set forth above, IT IS ORDERED that:

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(1)

Plaintiff’s Motion to Proceed IFP [ECF No. 2] is DENIED and the action is

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DISMISSED without prejudice for failure to prepay the $350 filing fee mandated by 28 U.S.C.

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§ 1914(a).

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(2)

Plaintiff is GRANTED an additional forty-five (45) days from the date of this

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Order to either: (1) pay the entire $350 filing fee, or (2) file a new Motion to Proceed IFP,

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which includes a certified copy of his trust account statement for the 6-month period preceding

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the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. C AL. C IVLR 3.2(b).

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IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with a

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Court-approved form “Motion and Declaration in Support of Motion to Proceed IFP” in this

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matter. If Plaintiff neither pays the $350 filing fee in full nor sufficiently completes and files

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the attached Motion to Proceed IFP, together with a certified copy of his trust account statement

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within 45 days, this action shall remained closed without further Order of the Court.1

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DATED: __9-30-11__________

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_______________________________________
HON. JOHN A. HOUSTON
United States District Judge

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Plaintiff is cautioned that if he chooses to proceed further by either paying the full civil filing
fee required by 28 U.S.C. § 1914(a), or sufficiently moving to proceed IFP, his Complaint will be
screened by the Court and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C.
§ 1915(e)(2)(b) regardless of payment or fee status. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th
Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua
sponte dismiss an in forma pauperis complaint that fails to state a claim); see also Rhodes v. Robinson,
621 F.3d 1002, 1004 (9th Cir. 2010) (discussing sua sponte screening required by 28 U.S.C. § 1915A(b)
of all prisoner complaints).
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