Moyer v. People of the State of California et al

Filing 3

ORDER Denying 2 Motion to Proceed In Forma Pauperis and Dismissing Civil Action Without Prejudice for Failing to Prepay Filing Fees Required. It is ordered Plaintiffs Motion to Proceed IFP (ECF No. 2) is denied and the action is dismissed with out prejudice for failure to prepay the $400 filing fee required 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 statu tory and administrative filing fee, or (2) filing a new Motion to Proceed IFP, including a certified copy of his trust account statement for the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. C al. Civ. L.R. 3.2(b). If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and files the attached Motion to Proceed IFP, together with a certified copy of his trust account statement within 45 days, this action wil l 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 8/1/2017. (All non-registered users served via U.S. Mail Service)(Motion IFP Mailed Out)(dxj)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

MAURICE D. MOYER, Sr.,
CDCR #AR-9913,

Case No.: 17cv797-JLS (BLM)
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,

13
v.

14
15
16

PEOPLE OF THE STATE OF
CALIFORNIA, et al.,

17

Defendants.

18

(ECF No. 2)

19
20

Plaintiff Maurice D. Moyer, Sr., currently incarcerated at California State Prison—

21

Sacramento (“CSP-SAC”) in Represa, California, and proceeding pro se, has filed a

22

“petition for writ for civil rights complaint” seeking $15 million in punitive damages from

23

the State of California, a San Diego Superior Court Judge, and the San Diego District

24

Attorney based on his “wrongful imprisonment.” (ECF No. 1 at 1–2, 4, 29.) Plaintiff claims

25

he was denied a fair and speedy trial and was convicted based on “insufficient evidence”

26

in San Diego Superior Court Case No. SCE324735 sometime in 2013. (Id. at 3, 6, 8–11,

27

14–23.)

28

///
1
17cv797-JLS (BLM)

1

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

2

he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

3

§ 1915(a) (ECF No. 2).

4

I.

Motion to Proceed IFP

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

In order to comply with the Prison Litigation Reform Act (42 U.S.C. § 1997e),

19

prisoners seeking leave to proceed IFP must also submit a “certified copy of the[ir] trust

20

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

21

preceding the filing of the complaint. . . .” 28 U.S.C. § 1915(a)(2). From the certified trust

22

account statement, the Court assesses an initial payment of 20% of (a) the average monthly

23

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

24

account for the past six months, whichever is greater, unless the prisoner has no assets. See

25
26
27
28

1

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.
2
17cv797-JLS (BLM)

1

28 U.S.C. § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, the institution having

2

custody of the prisoner collects subsequent payments, assessed at 20% of the preceding

3

month’s income, in any month in which the prisoner’s account exceeds $10, and forwards

4

them to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

5

While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a),

6

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

7

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

8

§ 1915(a)(2); S.D. Cal. Civ. L.R. 3.2. Section 1915(a)(2) clearly requires that prisoners

9

“seeking to bring a civil action . . . without prepayment of fees . . . shall submit a certified

10

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

11

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

12

(emphasis added).

13

Without Plaintiff’s trust account statement, the Court is unable to assess the

14

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

15

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

16

II.

Conclusion and Order

17

For these reasons, IT IS ORDERED that:

18

(1)

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

19

DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28

20

U.S.C. § 1914(a).

21

(2)

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

22

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

23

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

24

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

25

28 U.S.C. § 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2(b).2

26
27
28

2

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 will be dismissed pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B),
3
17cv797-JLS (BLM)

1

(3)

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

2

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

3

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

4

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

5

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

6

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

7
8

IT IS SO ORDERED.
Dated: August 1, 2017

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

regardless of whether he pays or is obligated to pay filing fees. See Lopez v. Smith, 203 F.3d 1122, 112627 (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 pled, Plaintiff’s Complaint will be subject to such a dismissal because suits like his “challenging
the validity of [a] prisoner’s continued incarceration lie within ‘the heart of habeas corpus.’” Ramirez v.
Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (quoting Preiser v. Rodriguez, 411 U.S. 475, 489–99 (1973)
(holding that a writ of habeas corpus is “explicitly and historically designed” to provide a state prisoner
with the “exclusive” means to “attack the validity of his confinement” in federal court)). Moreover, he
may not seek damages against the parties he has named as Defendants. The State of California is entitled
to sovereign immunity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99–100 (1984)
(explaining that the Eleventh Amendment bars federal jurisdiction over suits by individuals against a State
and its instrumentalities, unless either the State consents to waive its sovereign immunity or Congress
abrogates it). San Diego Superior Court Judge Brannigan is absolutely immune. See Gregory v. Thompson,
500 F.2d 59, 62 (9th Cir. 1974) (“A seemingly impregnable fortress in American Jurisprudence is the
absolute immunity of judges from civil liability for acts done by them within their judicial jurisdiction.”).
And the District Attorney is entitled to similar immunity. See Van de Kamp v. Goldstein, 555 U.S. 335,
341 (2009) (state prosecutors are entitled to absolute prosecutorial immunity for acts taken in their official
capacity).
4
17cv797-JLS (BLM)