Ontiveors v. Beaza, et al.,

Filing 16

ORDER Denying Motion To Proceed In Forma Pauperis And Dismissing Case Without Prejudice Pursuant To 28 U.S.C. Section 1915(a) (Re Doc. 15 ): Plaintiff is granted an additional forty-five (45) days to either: (1) pay the entire $400 statutory an d administrative filing fee, or (2) file a new Motion to Proceed IFP. If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and files the Motion to Proceed IFP, together with a certified copy of his trust account statement within 45 days, this action shall remained closed without further Order of the Court. Signed by Judge William Q. Hayes on 4/22/2014. (All non-registered users served via U.S. Mail Service, along with a blank IFP motion form.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Civil No.

MARTIN ONTIVEORS,
CDCR #AM-7636,
Plaintiff,

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vs.
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14cv0900 WQH (PCL)

ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING CASE WITHOUT
PREJUDICE PURSUANT TO
28 U.S.C. § 1915(a)
[ECF Doc. No. 15]

P. BEAZA; C. MIETO; R. ARIAS;
AMY MILLER,

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Defendants.

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Plaintiff, a prisoner currently incarcerated at Centinela State Prison located in Imperial,

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

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has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuantto 28 U.S.C. § 1915(a) [ECF

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Doc. No. 15].

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III

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I.

MOTION TO PROCEED IFP

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

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States, except an application for writ of habeas corpus, must pay a filing fee of $400. 1 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

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

6 Andrews v. Cervantes, 493 F.3d 1047, lOS I (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 Taylorv. Delatoore, 281 F.3d 844,847 (9th Cir. 2002)

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(citing 28 U.S.C. § 1915(b)(l) & (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 ofthe 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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of20% 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)(l), (4); see Taylor, 281 F.3dat850. Thereafter,

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

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ofthe 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 pursuantto 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. § 19I5(a)(2); S.D. CAL.

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ClvLR 3.2. Section 1915(a)(2) clearly mandates that prisoners "seeking to bring a civil action

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lIn addition to the $350 statutory fee, all parties filing civil actions on or after May 1,2013, must
pay an additional administrative fee of$50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of
Fees, District Court Misc. Fee Schedule) (eff. May 1,2013). However, the additional $50 administrative
fee is waived if the plaintiff is granted leave to proceed IFP. Id.
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1 ... without prepayment offees ... 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

3 complaint." 28 U.S.C. § 1915(a)(2) (emphasis added).
Without Plaintiffs trust account statement, the Court is simply unable to assess the

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5 appropriate amount of the filing fee which is statutorily required to initiate the prosecution of
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CONCLUSION AND ORDER

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

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(1)

Plaintiffs Motion to Proceed IFP [ECF Doc. No. 15] is DENIED and the action

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is DISMISSED without prejudice for failure to prepay the $400 filing fee mandated by 28 U.S.C.

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§ 1914(a).

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(2)

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

Order to either: (1) pay the entire $400 statutory and administrative filing fee, or (2) file a new

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monthperiodpreceding thefilingofhis Complaintpursuantto 28 U.S.C. § 1915(a)(2) and S.D.

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

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DATED:

_:L:0:~~7L~~V_
United States District Judge

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