Crosby v. San Diego Police Dept. et al

Filing 3

ORDER Denying 2 Motion for Leave to Proceed in Forma Pauperis and Dismissing Civil Action Without Prejudice for Failing to Prepay Filing Fees required. Plaintiff is GRANTED forty-five (45) days from the date of this Order in which to re-open h is case by either: (1) paying the entire $400 statutory and administrative filing fee, or (2) filing a new Motion to Proceed IFP. The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- approved form "Motion and Declaration in Support of Motion to Proceed IFP" in this matter. Signed by Judge Gonzalo P. Curiel on 9/22/16. (All non-registered users served via U.S. Mail Service)(Blank IFP form sent to Plaintiff. dlg)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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DEMETRIUS CROSBY,
Booking #15781534,

ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(a)
AND DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILING TO PREPAY FILING
FEES REQUIRED BY
28 U.S.C. § 1914(a)

Plaintiff,

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Case No.: 3:16-cv-1309-GPC-MDD

vs.

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SAN DIEGO POLICE DEPT., et al.,
Defendants.

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[ECF No. 2]

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Demetrius Crosby (“Plaintiff”), currently incarcerated at George Bailey Detention

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Facility (“GBDF”), and proceeding pro se, has filed a civil rights complaint (“Compl.”)

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pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff claims the San Diego Police

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Department, both the City and County of San Diego, and three “John Doe” Police Officers

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used excessive force while effecting his arrest “at or around” Petco Park in December 2015,

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and denied him medical attention afterward. (ECF No. 1 at 2-5.)

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Plaintiff has not prepaid the civil filing fee required 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.

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§ 1915(a) (ECF No. 2).
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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 of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the

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plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he

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nevertheless remains obligated to pay the entire fee in “increments,” see Williams v.

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Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is ultimately

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dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th

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Cir. 2002). A “prisoner” is defined as “any person” who at the time of filing is “incarcerated

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or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated

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delinquent for, violations of criminal law or the terms or conditions of parole, probation,

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pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 F.3d at 847.

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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[ir] trust fund account statement (or institutional equivalent)

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. . . for the 6-month period immediately preceding the filing of the complaint. . . .” 28

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

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

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or (b) the average monthly balance in the account for the past six months, whichever is

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greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); see Taylor, 281

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F.3d at 850. Thereafter, the institution having custody of the prisoner collects subsequent

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payments, assessed at 20% of the preceding month’s income, in any month in which the

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prisoner’s account exceeds $10, and forwards them to the Court until the entire filing fee

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In addition to the $350 statutory fee, civil litigants 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, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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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),

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he has not attached a certified copy of his GBDF trust account statements for the 6-month

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

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CAL. CIVLR 3.2. Section 1915(a)(2) clearly requires that prisoners “seeking to bring a civil

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

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account statement (or institutional equivalent) . . . for the 6-month period immediately

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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 the

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

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

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II.

Conclusion and Order

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For these reasons, 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 $400 filing fee required by 28

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U.S.C. § 1914(a).

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(2)

Plaintiff is GRANTED forty-five (45) days from the date of this Order in

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which to re-open his case by either: (1) paying the entire $400 statutory and administrative

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filing fee, or (2) filing a new Motion to Proceed IFP, which includes a certified copy of his

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trust account statement for the 6-month period preceding the filing of his Complaint

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pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b).2

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Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full
$400 civil filing fee, or submitting a properly supported Motion to Proceed IFP, his
Complaint will be reviewed before service and may be dismissed pursuant to 28 U.S.C.
§ 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays or is obligated
to pay filing fees. 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 is frivolous, malicious, fails to state a claim,
or seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621
F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C.
§ 1915A of all complaints filed by prisoners “seeking redress from a governmental entity
or officer or employee of a governmental entity.”). As currently pleaded, it appears
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(3)

The Clerk of the Court is DIRECTED to provide Plaintiff with a Court-

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

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matter. If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and

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

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statement within 45 days, this action will remained dismissed without prejudice pursuant

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to 28 U.S.C. § 1914(a), and without further Order of the Court.

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IT IS SO ORDERED.
Dated: September 22, 2016

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Plaintiff’s Complaint will be subject to such a dismissal insofar as it fails to comply with
FED.R.CIV.P. 8(a)(1)-(3). See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting that “[a]
pleading that offers ‘labels and conclusions,’” or one that “tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement’” fails to “state a claim to relief that is plausible on
its face.’” (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555, 557, 570 (2007)).
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