Walters v. Sheriff et al
Filing
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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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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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LEAONARD WALTERS,
aka JAMES C. WALTERS,
CDCR #BC-6589,
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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,
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vs.
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SHERIFF; KNOWN DOCTOR; KNOWN
MEDICAL STAFF; KNOWN SHERIFF
DEPUTY,
[ECF No. 2]
Defendants.
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Leonard Walters, also known as James C. Walters, (“Plaintiff”), currently housed
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at the California Institution for Men, and proceeding pro se, has filed a civil rights
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complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has not prepaid the civil
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filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In
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Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
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3:17-cv-0902-GPC-JMA
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I.
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Motion to Proceed IFP
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).1 An action may proceed despite a 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 at the time of filing, he may be granted leave to proceed IFP, but he
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nevertheless remains obligated to pay the entire fee in “increments,” see Williams v.
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Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is
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ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d
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844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” who at the time of
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filing is “incarcerated or detained in any facility who is accused of, convicted of,
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sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or
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conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C.
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§ 1915(h); Taylor, 281 F.3d at 847.
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In order to comply with the PLRA, prisoners seeking leave to proceed IFP must
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also submit a “certified copy of the[ir] trust fund account statement (or institutional
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equivalent) . . . for the 6-month period immediately preceding the filing of the
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complaint. . . .” 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the
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Court assesses an initial payment of 20% of (a) the average monthly deposits in the
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account for the past six months, or (b) the average monthly balance in the account for the
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past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C.
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§ 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, the institution having custody
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of the prisoner collects subsequent payments, assessed at 20% of the preceding month’s
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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.
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3:17-cv-0902-GPC-JMA
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income, in any month in which the prisoner’s account exceeds $10, and forwards them to
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the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
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While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a),
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he filed only a prison certificate from the San Diego Central Jail where he is no longer
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housed and was not housed at the time of filing. Plaintiff has been housed at the
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California Institution for Men (“CIM”) since March 30, 20171 and Plaintiff’s Complaint
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was deemed “filed” as of April 21, 2017. (See Compl. at 9.) Plaintiff must provide a
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certified copy of his inmate trust account from the institution where he is currently
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housed. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2. Section 1915(a)(2) clearly
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requires that prisoners “seeking to bring a civil action . . . without prepayment of fees . . .
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shall submit a certified copy of the trust fund account statement (or institutional
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equivalent) . . . for the 6-month period immediately preceding the filing of the
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complaint.” 28 U.S.C. § 1915(a)(2) (emphasis added). If Plaintiff has not been in custody
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for a full 6-months prior to filing, he must submit copies of his trust account statements
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for the entire period during which he was first detained, up to the time of filing, and/or a
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prison certificate signed by CIM officials attesting as to his recent trust account activities
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and current balance.
Without Plaintiff’s trust account statement, or CIM’s functional equivalent, the
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Court is simply unable to assess the appropriate amount of the initial filing fee which is
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statutorily required to initiate the prosecution of this action. See 28 U.S.C. § 1915(b)(1).
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II.
Conclusion and Order
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For these reasons, IT IS ORDERED that:
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(1)
Plaintiff’s Motion to Proceed IFP (ECF No. 2) is DENIED and the action is
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DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28
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U.S.C. § 1914(a).
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See CDCR Inmate locater http://inmatelocator.cdcr.ca.gov/Results.aspx (website last visited May 8,
2017.)
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3:17-cv-0902-GPC-JMA
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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
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administrative filing fee, or (2) filing a new Motion to Proceed IFP, which includes a
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certified copy of his trust account statement for the 6-month period preceding the filing of
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his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 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 Motion to Proceed IFP, together with a certified copy of his trust
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account statement within 45 days, this action will remained dismissed without prejudice
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pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court.2
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IT IS SO ORDERED.
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Dated: May 11, 2017
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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.”).
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