Walters v. Sheriff 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 days from the date of this Order in which to re- open his cas e by either: (1) paying the entire $400 statutory and administrative filing fee, or (2) filing a new Motion to Proceed IFP.. Signed by Judge Gonzalo P. Curiel on 5/11/17. (All non-registered users served via U.S. Mail Service) (IFP form mailed to Plaintiff)(dlg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

LEAONARD WALTERS,
aka JAMES C. WALTERS,
CDCR #BC-6589,

13

Case No.: 3:17-cv-0902-GPC-JMA
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,

14

vs.

15
16
17
18

SHERIFF; KNOWN DOCTOR; KNOWN
MEDICAL STAFF; KNOWN SHERIFF
DEPUTY,

[ECF No. 2]

Defendants.

19
20
21

Leonard Walters, also known as James C. Walters, (“Plaintiff”), currently housed

22
23

at the California Institution for Men, and proceeding pro se, has filed a civil rights

24

complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has not prepaid the civil

25

filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In

26

Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

27

///

28

///
1
3:17-cv-0902-GPC-JMA

1

I.

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” who at the time of

12

filing is “incarcerated or detained in any facility who is accused of, convicted of,

13

sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or

14

conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C.

15

§ 1915(h); Taylor, 281 F.3d at 847.

16

In order to comply with the PLRA, prisoners seeking leave to proceed IFP must

17

also submit a “certified copy of the[ir] trust fund account statement (or institutional

18

equivalent) . . . for the 6-month period immediately preceding the filing of the

19

complaint. . . .” 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the

20

Court assesses an initial payment of 20% of (a) the average monthly deposits in the

21

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

22

past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C.

23

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

24

of the prisoner collects subsequent payments, assessed at 20% of the preceding month’s

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. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
2
3:17-cv-0902-GPC-JMA

1

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

2

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

3

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

4

he filed only a prison certificate from the San Diego Central Jail where he is no longer

5

housed and was not housed at the time of filing. Plaintiff has been housed at the

6

California Institution for Men (“CIM”) since March 30, 20171 and Plaintiff’s Complaint

7

was deemed “filed” as of April 21, 2017. (See Compl. at 9.) Plaintiff must provide a

8

certified copy of his inmate trust account from the institution where he is currently

9

housed. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2. Section 1915(a)(2) clearly

10

requires that prisoners “seeking to bring a civil action . . . without prepayment of fees . . .

11

shall submit a certified copy of the trust fund account statement (or institutional

12

equivalent) . . . for the 6-month period immediately preceding the filing of the

13

complaint.” 28 U.S.C. § 1915(a)(2) (emphasis added). If Plaintiff has not been in custody

14

for a full 6-months prior to filing, he must submit copies of his trust account statements

15

for the entire period during which he was first detained, up to the time of filing, and/or a

16

prison certificate signed by CIM officials attesting as to his recent trust account activities

17

and current balance.
Without Plaintiff’s trust account statement, or CIM’s functional equivalent, the

18
19

Court is simply unable to assess the appropriate amount of the initial filing fee which is

20

statutorily required to initiate the prosecution of this action. See 28 U.S.C. § 1915(b)(1).

21

II.

Conclusion and Order

22

For these reasons, IT IS ORDERED that:

23

(1)

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

24

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

25

U.S.C. § 1914(a).

26
27
1

28

See CDCR Inmate locater http://inmatelocator.cdcr.ca.gov/Results.aspx (website last visited May 8,
2017.)
3
3:17-cv-0902-GPC-JMA

1

(2)

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

2

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

3

administrative filing fee, or (2) filing a new Motion to Proceed IFP, which includes a

4

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

5

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

6

(3)

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

7

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

8

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

9

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

10

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

11

pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court.2

12

IT IS SO ORDERED.

13
14

Dated: May 11, 2017

15
16
17
18
19
20
21
2

22
23
24
25
26
27
28

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.”).
4
3:17-cv-0902-GPC-JMA