Smith v. Chau et al

Filing 12

ORDER Denying 7 Motion to Proceed In Forma Pauperis and Dismissing Case Without Prejudice Pursuant to 28 U.S.C. §1915(a). Plaintiff is Granted forty-five (45) days to pay the entire $350 filing fee and $50 administrative fee in full, or 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. Signed by Judge Gonzalo P. Curiel on 6/18/2013. Plaintiff provided new IFP Form. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CAREY SMITH,
P-13926,

Civil No.

Plaintiff,

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vs.

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DR. JOHN CHAU; DR. G. CASIAN;
D. MORTON,

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13-1337 GPC (WMc)

ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING CASE WITHOUT
PREJUDICE PURSUANT TO
28 U.S.C. § 1915(a)
[ECF No. 7]

Defendants.

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Plaintiff, a state inmate currently incarcerated at the Richard J. Donovan Correctional

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21 Facility (“RJD”), and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C.
22 § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead,
23 he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)
24 [ECF No. 7].
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MOTION TO PROCEED IFP

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

27 States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28
28 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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1 granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See
2 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176,
3 1177 (9th Cir. 1999). “Under the PLRA [Prison Litigation Reform Act], all prisoners who file
4 IFP civil actions must pay the full amount of the filing fee,” regardless of whether the action is
5 ultimately dismissed for any reason. See Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002)
6 (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

8 submit a “certified copy of the trust fund account statement (or institutional equivalent) for the
9 prisoner for the 6-month period immediately preceding the filing of the complaint....” 28 U.S.C.
10 § 1915(a)(2). From the certified trust account statement, the Court assesses an initial payment
11 of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the
12 average monthly balance in the account for the past six months, whichever is greater, unless the
13 prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter,
14 the institution having custody of the prisoner must collect subsequent payments, assessed at 20%
15 of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and
16 forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C.
17 § 1915(b)(2).
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While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), he has

19 not attached a certified copy of his prison trust account statement for the 6-month period
20 immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL.
21 CIVLR 3.2. Section 1915(a)(2) clearly mandates that prisoners “seeking to bring a civil action
22 ...without prepayment of fees ... shall submit a certified copy of the trust fund account statement
23 (or institutional equivalent) ... for the 6-month period immediately preceding the filing of the
24 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

26 appropriate amount of the filing fee which is statutorily required to initiate the prosecution of
27 this action. See 28 U.S.C. § 1915(b)(1).
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1 II.

CONCLUSION AND ORDER

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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. 7] is DENIED and the action is

4 DISMISSED without prejudice for failure to prepay the $400 filing fee mandated by 28 U.S.C.
5 § 1914(a).
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(2)

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

7 Order to either: (a) prepay the entire $350 civil filing fee and $50 administrative fee in full; or
8 (b) complete and file a Motion to Proceed IFP which includes a certified copy of his trust
9 account statement for the 6-month period preceding the filing of his Complaint. See 28 U.S.C.
10 § 1915(a)(2); S.D. CAL. CIVLR 3.2(b). If Plaintiff chooses to file a Motion to Proceed IFP which
11 the Court later grants, the $50 administrative fee will be waived.
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IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with a

13 Court-approved form “Motion and Declaration in Support of Motion to Proceed IFP” in this
14 matter. If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and files
15 the attached Motion to Proceed IFP, together with a certified copy of his trust account statement
16 within 45 days, this action shall remained closed without further Order of the Court.
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IT IS SO ORDERED.

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19 DATED: June 18, 2013
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HON. GONZALO P. CURIEL
United States District Judge

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