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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 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, 12 vs. 13 14 15 M. BLADE, Licensed Vocational Nurse (LVN); LYNCH, Registered Nurse (RN), 16 Defendants. 17 [ECF No. 2] 18 RUFUS GRAY (“Plaintiff”), currently incarcerated at California State Prison, Los 19 20 Angeles County (“LAC”) in Lancaster, California, and proceeding pro se, has filed a civil 21 rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff claims two 22 Centinela State Prison nurses denied him adequate medical care in violation of the Eighth 23 Amendment while he was incarcerated there in November 2016. (Id. at 1-2, 9-12.) 24 Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); 25 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 26 U.S.C. § 1915(a) (ECF No. 2). 27 /// 28 /// 1 3:17-cv-01773-GPC-JMA 1 2 I. 3 Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 6 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 7 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 8 plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he 9 nevertheless remains obligated to pay the entire fee in “increments,” see Williams v. 10 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is 11 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 12 844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” who at the time of 13 filing is “incarcerated or detained in any facility who is accused of, convicted of, 14 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 15 conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. 16 § 1915(h); Taylor, 281 F.3d at 847. 17 In order to comply with the PLRA, prisoners seeking leave to proceed IFP must 18 also submit a “certified copy of the[ir] trust fund account statement (or institutional 19 equivalent) . . . for the 6-month period immediately preceding the filing of the 20 complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court 21 assesses an initial payment of 20% of (a) the average monthly deposits in the account for 22 the past six months, or (b) the average monthly balance in the account for the past six 23 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 24 § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, the institution having custody 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. June. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:17-cv-01773-GPC-JMA 1 of the prisoner collects subsequent payments, assessed at 20% of the preceding month’s 2 income, in any month in which the prisoner’s account exceeds $10, and forwards them to 3 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 4 While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 5 he has not attached a certified copy of his LAC trust account statements for the 6-month 6 period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 7 S.D. CAL. CIVLR 3.2. Section 1915(a)(2) clearly requires that prisoners “seeking to bring 8 a civil action ... without prepayment of fees ... shall submit a certified copy of the trust 9 fund account statement (or institutional equivalent) . . . for the 6-month period 10 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) (emphasis 11 added). Without Plaintiff’s trust account statement, the Court is unable to assess the 12 13 appropriate amount of the initial filing fee which is statutorily required to initiate the 14 prosecution of this action. See 28 U.S.C. § 1915(b)(1). 15 II. Conclusion and Order 16 For these reasons, IT IS ORDERED that: 17 (1) Plaintiff’s Motion to Proceed IFP (ECF No. 2) is DENIED and the action is 18 DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28 19 U.S.C. § 1914(a). 20 (2) Plaintiff is GRANTED forty-five (45) days from the date of this Order in 21 which to re-open his case by either: (1) paying the entire $400 statutory and 22 administrative filing fee, or (2) filing a new Motion to Proceed IFP, which includes a 23 certified copy of his trust account statement for the 6-month period preceding the filing of 24 his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b).2 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) 3 3:17-cv-01773-GPC-JMA 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: October 12, 2017 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (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.”). 4 3:17-cv-01773-GPC-JMA

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