Williams v. California, State of et al

Filing 3

ORDER Denying 2 Motion for Leave to Proceed in forma pauperis and Dismissing Case Without Prejudice Pursuant to 28 U.S.C. § 1915(a). Plaintiff is Granted an additional forty-five (45) days to either: (1) pay the entire $400 statutory and administrative filing fee, 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 28U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b). Plaintiff provided approved IFP form. Signed by Judge Gonzalo P. Curiel on 8/20/2014. (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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JOSHUA DAVID WILLIAMS,
Inmate Booking No. 14732898,
Plaintiff,

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Civil No.

vs.

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STATE OF CALIFORNIA, et al.,
Defendants.

14cv1816 GPC (PCL)

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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Joshua David Williams (“Plaintiff”), currently incarcerated at San Diego Central

20 Jail located in San Diego, California, and proceeding pro se, has filed a civil rights
21 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. No. 1).
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Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a);

23 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28
24 U.S.C. § 1915(a) (Doc. No. 2).
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I.

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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

28 United States, except an application for writ of habeas corpus, must pay a filing fee of
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14cv1816 GPC (PCL)

1 $400.1 See 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay
2 only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28
3 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
4 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “Under the PLRA [Prison
5 Litigation Reform Act], all prisoners who file IFP civil actions must pay the full amount
6 of the filing fee,” regardless of whether their case is ultimately dismissed. See Taylor
7 v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002) (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

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

20 he has not attached a certified copy of his prison trust account statements or the
21 institutional certificate of funds or its equivalent, for the 6-month period immediately
22 preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2.
23 Section 1915(a)(2) clearly mandates that prisoners “seeking to bring a civil action
24 . . . without prepayment of fees . . . shall submit a certified copy of the trust fund
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In addition to the $350 statutory fee, all parties filing civil actions on or after

27 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,
28 2013). However, the additional $50 administrative fee is waived if the plaintiff is

granted leave to proceed IFP. Id.

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

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

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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)

Plaintiff’s Motion to Proceed IFP (Doc. No. 2) is DENIED and the action

10 is DISMISSED without prejudice for failure to prepay the $400 filing fee mandated by
11 28 U.S.C. § 1914(a).
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(2)

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

13 this Order to either: (1) pay the entire $400 statutory and administrative filing fee, or (2)
14 file a new Motion to Proceed IFP, which includes a certified copy of his trust account
15 statement for the 6-month period preceding the filing of his Complaint pursuant to 28
16 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b).
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The Clerk of the Court is further DIRECTED to provide Plaintiff with the Court’s

18 approved form “Motion and Declaration in Support of Motion to Proceed IFP” for
19 Plaintiff’s use if he wishes to proceed further. If Plaintiff neither pays the $400 filing
20 fee in full nor sufficiently completes and files the attached Motion to Proceed IFP,
21 together with a certified copy of his trust account statement within 45 days, this civil
22 action will remained dismissed without prejudice pursuant to 28 U.S.C. § 1915(a) and
23 without further action by the Court.
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25 DATED: August 20, 2014
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HON. GONZALO P. CURIEL
United States District Judge

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