Connelly v. Kay/Que

Filing 4

ORDER Denying Motion To Proceed In Forma Pauperis And Dismissing Action Without Prejudice: The action is dismissed without prejudice for failure to prepay the $400 filing fee. Plaintiff is granted forty-five (45) days to re-open his case by eith er: (1) paying the entire $400 statutory and administrative filing fee, or (2) filing a new Motion to Proceed IFP. If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and files the Motion to Proceed IFP, this action will remained dismissed without prejudice. Signed by Judge William Q. Hayes on 8/28/2017. (All non-registered users served via U.S. Mail Service. Per Order, a blank IFP motion form also was sent to plaintiff.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMES CONNELLY,
CDCR #AZ-2648

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ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING ACTION
WITHOUT PREJUDICE

Plaintiff,

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Case No.: 3:17-cv-1526-WQH-JLB

v.
KAY/QUE, Counselor,
Defendants.

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James Connelly (“Plaintiff”), currently housed at the San Diego Central Jail

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located in San Diego, California, and proceeding pro se, has filed a civil rights complaint

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(“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. 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) (Doc. No. 3).

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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). 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 complaint.

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

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

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

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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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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 has not attached a certified copy of his trust account statements, or an institutional

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equivalent, for the 6-month period immediately preceding the filing of his Complaint. See

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28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) clearly requires that

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prisoners “seeking to bring a civil action . . . without prepayment of fees . . . shall submit

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a certified copy of the trust fund account statement (or institutional equivalent) . . . for the
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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2) (emphasis added).

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Without Plaintiff’s current trust account statement reflecting the 6-month period

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immediately preceding the filing of this action, the Court is simply unable to assess the

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appropriate amount of the initial filing fee which is statutorily required to initiate the

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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 (Doc. 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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(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.

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Dated: August 28, 2017

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