Sims v. El Cajon Police et al

Filing 3

ORDER denying 2 Motion for Leave to Proceed in forma pauperis and Dismissing Action Without Prejudice. Signed by Judge Roger T. Benitez on 5/26/2017. (Motion and Declaration in Support of Motion to Proceed IFP mailed to Plaintiff) (All non-registered users served via U.S. Mail Service) (fth)

Download PDF
c. / i 1 2 FILED 3 13 HAY 30 PH \m 4 ft ECK. U.S. WST&IGT ^SiWlXi 3#fftfetH#ttTRter W UWtMMA 5 ttsr 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TONY LEMONT SIMS, JR. Case No.: 3:17-cv-01062-BEN-NLS Plaintiff, 12 13 v. 14 ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION WITHOUT PREJUDICE CHIEF EL CAJON POLICE; MTS SECURITY, 15 Defendants. 16 17 18 19 Tony Lemont Sims, Jr. (“Plaintiff’), currently housed at the George Bailey 20 21 Detention Facility located in San Diego, California, and proceeding pro se, has filed a 22 civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (Docket No. 1.) 23 Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); instead, he 24 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 25 (Docket No. 2.) 26 I. Motion to Proceed IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of l 3:17-cv-01062-BEN-NLS *_* 1 I $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiffs failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Rodriguez v. Cook, 169F.3d 1176, 1177 (9th Cir. 1999). However, if the 4 plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he 5 nevertheless remains obligated to pay the entire fee in “increments,” see Williams v. 6 Paramo, 775 F.3d 1182,1185 (9th Cir. 2015), regardless of whether his action is 7 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 8 844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” who at the time of 9 filing is “incarcerated or detained in any facility who is accused of, convicted of, 10 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 11 conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. 12 § 1915(h); Taylor, 281 F.3d at 847. 13 In order to comply with the PLRA, prisoners seeking leave to proceed IFP must 14 also submit a “certified copy of the[ir] trust fund account statement (or institutional 15 equivalent)... for the 6-month period immediately preceding the filing of the complaint. 16 ...” 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court 17 assesses an initial payment of 20% of (a) the average monthly deposits in the account for 18 the past six months, or (b) the average monthly balance in the account for the past six 19 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 20 § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, the institution having custody 21 of the prisoner collects subsequent payments, assessed at 20% of the preceding month’s 22 income, in any month in which the prisoner’s account exceeds $10, and forwards them to 23 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 24 While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 25 he has not attached a certified copy of his trust account statements, or an institutional 26 equivalent, for the 6-month period immediately preceding the filing of his Complaint. 27 See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) clearly requires that 28 prisoners “seeking to bring a civil action ... without prepayment of fees ... shall submit 2 3:17-cv-01062-BEN-NLS ; 1 a certified copy of the trust fund account statement (or institutional equivalent)... for the 2 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 3 § 1915(a)(2) (emphasis added). 4 Without Plaintiffs current trust account statement reflecting the 6-month period 5 immediately preceding the filing of this action, the Court is simply unable to assess the 6 appropriate amount of the initial filing fee which is statutorily required to initiate the 7 prosecution of this action. See 28 U.S.C. § 1915(b)(1). 8 II. Conclusion and Order 9 10 11 For these reasons, IT IS ORDERED that: (1) Plaintiffs Motion to Proceed IFP (Doc. No. 2) is DENIED and the action is DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28 12 U.S.C. § 1914(a). (2) Plaintiff is GRANTED forty-five (45) days from the date of this Order in 13 14 which to re-open his case by either: (1) paying the entire $400 statutory and 15 administrative filing fee, or (2) filing a new Motion to Proceed IFP, which includes a 16 certified copy of his trust account statement for the 6-month period preceding the filing of 17 his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court18 19 approved form “Motion and Declaration in Support of Motion to Proceed IFP” in this 20 matter. If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and 21 files the attached Motion to Proceed IFP, together with a certified copy of his trust 22 account statement within 45 days, this action will remained dismissed without prejudice 23 pursuant to 28 U.S.C. § 1914(a), and without furthej der of the Court. 24 25 26 DATED: May 2017 H< fniti spcf. BENITEZ ;es District Judge 27 28 3 3:17-cv-01062-BEN-NLS

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?