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)

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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 (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

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