Gerald L. Tucker v. Department of Correction et al

Filing 10

ORDER denying 9 Motion for Leave to Proceed in forma pauperis and Dismissing Action without Prejudice. Plaintiff's IFP Motion (ECF No. 9) is denied and the action is dismissed without prejudice for failure to prepay the $400 filing fee re quired by 28 U.S.C. § 1914(a). Plaintiff is granted forty-five (45) days from the date of this Order in which to re-open his case by either: (1) paying the entire $400 statutory and administrative filing fee, or (2) filing a new IFP Motion that includes a certified copy of his trust account statement for the six-month period preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2(b). 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. If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and files the attached IFP Motion, together with a certified copy of his trust account statement, within forty-five days, this action shall remained dismissed without prejudice pursuant to 28 U.S.C. § 1914(a) and without further Order of the Court. Signed by Judge Janis L. Sammartino on 9/9/2016. (All non-registered users served via U.S. Mail Service)(kcm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GERALD L. TUCKER,

Case No.: 16-CV-1846 JLS (PCL)
Plaintiff,

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ORDER: DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING ACTION
WITHOUT PREJUDICE

v.
DEPARTMENT OF CORRECTION, et
al.,

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Defendants.

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(ECF No. 9)

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Plaintiff Gerald L. Tucker, currently incarcerated at the Richard J. Donovan

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Correctional Facility located in San Diego, California, and proceeding pro se, has filed a

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civil rights complaint pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff has

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

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Motion to Proceed In Forma Pauperis (IFP) pursuant to 28 U.S.C. § 1915(a). (IFP Mot.,

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ECF No. 9.)

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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). An action may proceed despite the 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 and he is granted leave to proceed IFP, he nevertheless remains
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16-CV-1846 JLS (PCL)

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obligated to pay the entire fee in “increments,” Williams v. Paramo, 775 F.3d 1182, 1185

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(9th Cir. 2015), regardless of whether his action is ultimately dismissed, see 28 U.S.C.

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§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). A prisoner is

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defined as “any person” who at the time of filing is “incarcerated or detained in any facility

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who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of

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criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary

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

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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”),

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a prisoner seeking leave to proceed IFP must also submit a “certified copy of the trust fund

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

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preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d

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1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses

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an initial payment of 20% of (a) the average monthly deposits in the account for the past

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

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

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281 F.3d at 850. The institution having custody of the prisoner then 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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is paid. See 28 U.S.C. § 1915(b)(2).

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While Plaintiff has filed an IFP Motion pursuant to 28 U.S.C. § 1915(a), he has not

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attached a certified copy of his trust account statements, or an institutional equivalent, for

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the 6-month period immediately preceding the filing of his Complaint. See 28 U.S.C.

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§ 1915(a)(2); Civ. L.R. 3.2. Section 1915(a)(2) clearly requires that prisoners “seeking to

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bring a civil action . . . without prepayment of fees . . . shall submit a certified copy of the

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

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immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) (emphasis

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added).

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16-CV-1846 JLS (PCL)

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Without Plaintiff’s trust account statement, the Court is 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).
CONCLUSION

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For these reasons, IT IS ORDERED that:

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(1)

Plaintiff’s IFP Motion (ECF No. 9) is DENIED and the action is

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DISMISSED WITHOUT PREJUDICE for failure to prepay the $400 filing fee required

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by 28 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 IFP Motion that includes a certified copy of his trust account

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statement for the six-month period preceding the filing of his Complaint pursuant to 28

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U.S.C. § 1915(a)(2) and Civil Local Rule 3.2(b).

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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 IFP Motion, together with a certified copy of his trust account statement,

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within forty-five days, this action shall remained dismissed without prejudice pursuant to

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

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IT IS SO ORDERED.

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Dated: September 9, 2016

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