Gray v. Blade 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 Fee. Plaintiff is granted forty-five days from the date of this Order in which 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. Signed by Judge Gonzalo P. Curiel on 10/12/17. (All non-registered users served via U.S. Mail Service)(Blank 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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RUFUS GRAY,
CDCR #F-50751,

Case No.: 3:17-cv-01773-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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M. BLADE, Licensed Vocational Nurse
(LVN); LYNCH, Registered Nurse (RN),

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Defendants.

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[ECF No. 2]

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RUFUS GRAY (“Plaintiff”), currently incarcerated at California State Prison, Los

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Angeles County (“LAC”) in Lancaster, California, and proceeding pro se, has filed a civil

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rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff claims two

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Centinela State Prison nurses denied him adequate medical care in violation of the Eighth

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Amendment while he was incarcerated there in November 2016. (Id. at 1-2, 9-12.)

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Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a);

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instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

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U.S.C. § 1915(a) (ECF No. 2).

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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 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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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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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 LAC trust account statements for the 6-month

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period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2);

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S.D. CAL. CIVLR 3.2. Section 1915(a)(2) clearly requires that prisoners “seeking to bring

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a civil action ... without prepayment of fees ... shall submit a certified copy of the trust

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fund account statement (or institutional equivalent) . . . for the 6-month period

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immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) (emphasis

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added).
Without Plaintiff’s trust account statement, the Court is 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 (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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(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).2

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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)
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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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IT IS SO ORDERED.
Dated: October 12, 2017

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(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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