Johnson v. Doe et al

Filing 6

ORDER Denying 2 Motion To Proceed in Forma Pauperis and Dismissing Action Without Prejudice. Signed by Judge Larry Alan Burns on 7/12/2017. (All non-registered users served via U.S. Mail Service)("Motion and Declaration in Support of Motion to Proceed IFP" Form mailed to Plaintiff)(lrf)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 SEDRIC EUGENE JOHNSON, CDCR #AZ-2648 15 ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION WITHOUT PREJUDICE Plaintiff, 13 14 Case No.: 3:17-cv-00889-LAB-JLB v. JOHN DOE, SERGEANT JOHN DOE; LOPEZ; GARCIA, 16 Defendants. 17 18 19 20 Sedric Eugene Johnson (“Plaintiff”), a state inmate currently housed at the Kern 21 Valley State Prison located in Delano, California, and proceeding pro se, has filed a civil 22 rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. No. 1). Plaintiff has not 23 prepaid the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion 24 to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2). 25 I. 26 Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 1 3:17-cv-00889-LAB-JLB 1 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 2 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 3 plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he 4 nevertheless remains obligated to pay the entire fee in “increments,” see Williams v. 5 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is 6 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 7 844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” who at the time of 8 filing is “incarcerated or detained in any facility who is accused of, convicted of, 9 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 10 conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. 11 § 1915(h); Taylor, 281 F.3d at 847. 12 In order to comply with the PLRA, prisoners seeking leave to proceed IFP must 13 also submit a “certified copy of the[ir] trust fund account statement (or institutional 14 equivalent) . . . for the 6-month period immediately preceding the filing of the complaint. 15 . . .” 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court 16 assesses an initial payment of 20% of (a) the average monthly deposits in the account for 17 the past six months, or (b) the average monthly balance in the account for the past six 18 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 19 § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, the institution having custody 20 of the prisoner collects subsequent payments, assessed at 20% of the preceding month’s 21 income, in any month in which the prisoner’s account exceeds $10, and forwards them to 22 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 23 While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 24 he has not attached a certified copy of his trust account statements, or an institutional 25 equivalent, for the 6-month period immediately preceding the filing of his Complaint. See 26 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) clearly requires that 27 prisoners “seeking to bring a civil action . . . without prepayment of fees . . . shall submit 28 a certified copy of the trust fund account statement (or institutional equivalent) . . . for the 2 3:17-cv-00889-LAB-JLB 1 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 2 § 1915(a)(2) (emphasis added). 3 Without Plaintiff’s current trust account statement reflecting the 6-month period 4 immediately preceding the filing of this action, the Court is simply unable to assess the 5 appropriate amount of the initial filing fee which is statutorily required to initiate the 6 prosecution of this action. See 28 U.S.C. § 1915(b)(1). 7 II. Conclusion and Order 8 For these reasons, IT IS ORDERED that: 9 (1) Plaintiff’s Motion to Proceed IFP (Doc. No. 2) is DENIED and the action is 10 DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28 11 U.S.C. § 1914(a). 12 (2) Plaintiff is GRANTED forty-five (45) days from the date of this Order in 13 which to re-open his case by either: (1) paying the entire $400 statutory and 14 administrative filing fee, or (2) filing a new Motion to Proceed IFP, which includes a 15 certified copy of his trust account statement for the 6-month period preceding the filing of 16 his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). 17 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 18 approved form “Motion and Declaration in Support of Motion to Proceed IFP” in this 19 matter. If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and 20 files the attached Motion to Proceed IFP, together with a certified copy of his trust 21 account statement within 45 days, this action will remained dismissed without prejudice 22 pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court. 23 Dated: July 12, 2017 24 25 Hon. Larry Alan Burns United States District Judge 26 27 28 3 3:17-cv-00889-LAB-JLB

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?