Moreno v. Paramo et al

Filing 3

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 the Filing Fees Required by 28 U.S.C. 1914(a) [ECF. No. 2 ]. Signed by Judge Cathy Ann Bencivengo on 8/10/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 FRANCISCO MORENO, CDCR #AP-8200, Case No.: 3:17-cv-1449-CAB-KSC 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, 12 vs. 13 14 15 DANIEL PARAMO, et al., Defendants. 16 17 [ECF No. 2] 18 19 FRANCISCO MORENO (“Plaintiff”), currently incarcerated at California Health 20 Care Facility (“CHCF”) in Stockton, California, and proceeding pro se, has filed a civil 21 rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff claims the Warden 22 and several medical officials at Richard J. Donovan Correctional Facility (“RJD”) in San 23 Diego, California, denied him adequate medical care in violation of the Eighth 24 Amendment while he was incarcerated there from January through September 2016. (Id. 25 at 2-3, 22-23.) 26 Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); 27 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 28 U.S.C. § 1915(a) (ECF No. 2). 1 3:17-cv-1449-CAB-KSC 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 Court 20 assesses an initial payment of 20% of (a) the average monthly deposits in the account for 21 the past six months, or (b) the average monthly balance in the account for the past six 22 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. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:17-cv-1449-CAB-KSC 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 has not attached a certified copy of his CHCF trust account statements for the 6-month 5 period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 6 S.D. CAL. CIVLR 3.2. Section 1915(a)(2) clearly requires that prisoners “seeking to bring 7 a civil action ... without prepayment of fees ... shall submit a certified copy of the trust 8 fund account statement (or institutional equivalent) . . . for the 6-month period 9 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) (emphasis 10 added). Without Plaintiff’s trust account statement, the Court is simply unable to assess the 11 12 appropriate amount of the initial filing fee which is statutorily required to initiate the 13 prosecution of this action. See 28 U.S.C. § 1915(b)(1). 14 II. Conclusion and Order 15 For these reasons, IT IS ORDERED that: 16 (1) Plaintiff’s Motion to Proceed IFP (ECF No. 2) is DENIED and the action is 17 DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28 18 U.S.C. § 1914(a). 19 (2) Plaintiff is GRANTED forty-five (45) days from the date of this Order in 20 which to re-open his case by either: (1) paying the entire $400 statutory and 21 administrative filing fee, or (2) filing a new Motion to Proceed IFP, which includes a 22 certified copy of his trust account statement for the 6-month period preceding the filing of 23 his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b).2 24 25 26 27 28 2 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 3 3:17-cv-1449-CAB-KSC 1 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 2 approved form “Motion and Declaration in Support of Motion to Proceed IFP” in this 3 matter. If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and 4 files the attached Motion to Proceed IFP, together with a certified copy of his trust 5 account statement within 45 days, this action will remained dismissed without prejudice 6 pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court. 7 8 IT IS SO ORDERED. Dated: August 10, 2017 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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-1449-CAB-KSC

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