Ornelas v. Lopez et al

Filing 10

ORDER Denying 9 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). IT IS ORDERED that Plaintiff's Moti on to Proceed IFP (ECF No. 9) is DENIED and the action is DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28 U.S.C. § 1914(a). Plaintiff is GRANTED forty-five (45) days from the date of this Order in which to re-open his case by either: (1) paying the entire $400 statutory and administrative filing fee, or (2) filing a renewed Motion to Proceed IFP. Signed by Judge Dana M. Sabraw on 11/7/2017. (All non-registered users served via U.S. Mail Service)(IFP form mailed to Plaintiff)(aef)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAMIRO ORNELAS,
CDCR #F-94282,

Case No.: 3:17-cv-01867-DMS-AGS
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)
[ECF No. 9]

Plaintiff,

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vs.

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MARIA LOPEZ, et al.,
Defendants.

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RAMIRO ORNELAS (“Plaintiff”), currently incarcerated at Richard J. Donovan

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Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed

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this civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the

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time he filed his original Complaint (ECF No. 1), but on October 2, 2017, he filed an

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Amended Complaint (ECF No. 8), together with a Motion to Proceed In Forma Pauperis

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(“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 9).

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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 or submitted certified copy of his CDCR Inmate Statement Report for

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the 6-month period immediately preceding the filing of his Complaint. 1 See 28 U.S.C.

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§ 1915(a)(2); S.D. CAL. CIVLR 3.2. Section 1915(a)(2) clearly requires that prisoners

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

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copy of the trust fund account statement (or institutional equivalent) ... for the 6-month

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

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(emphasis added).

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Without these certified trust account statements, 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 this reason, IT IS ORDERED that:

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(1)

Plaintiff’s Motion to Proceed IFP (ECF No. 9) 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

which to re-open his case by either: (1) paying the entire $400 statutory and

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On September 8, 2017, Plaintiff submitted a certified copy of his CDCR Inmate Statement
Report covering one month of his trust account activity from July 1, 2017, through August
8, 2017, see ECF No. 3, but he has not attached proof of the additional 5-months of activity
required by 28 U.S.C. § 1915(a)(2) to the IFP Motion he filed on October 2, 2017. In
addition, his IFP Motion is not certified by an authorized trust account official at RJD, and
is instead signed by Plaintiff himself. See ECF No. 9 at 4.
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administrative filing fee, or (2) filing a renewed 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 6-month

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CDCR Inmate Statement Report within 45 days, this action will remained dismissed

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without prejudice pursuant to 28 U.S.C. § 1914(a), and without further Order of the

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Court.2

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IT IS SO ORDERED.
Dated: November 7, 2017

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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 renewed Motion to Proceed IFP,
his pleadings 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 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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