Nelson v. Imperial Beach, City of et al

Filing 8

ORDER Denying Second 7 Motion for Leave to Proceed in forma pauperis. The action is again DISMISSED without prejudice for failure to prepay the $400 filing fee. Plaintiff is GRANTED one final opportunity to correct his IFP deficiencies and an additional thirty (30) days leave from the date of this Order in which to re-open his case. Signed by Judge Gonzalo P. Curiel on 3/1/18. (Motion and IFP form mailed to Plaintiff) (All non-registered users served via U.S. Mail Service)(dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ROBERT L. NELSON, aka JAMAL MYXZ, Booking #17145564, 13 ORDER DENYING SECOND MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) Plaintiff, 14 15 Case No.: 3:17-cv-01913-GPC-KSC vs. CITY OF IMPERIAL BEACH, et al., 16 Defendants. [ECF No. 7] 17 18 ROBERT L. NELSON (“Plaintiff”), currently detained at George Bailey Detention 19 Facility (“GBDF”) in San Diego, California, and proceeding pro se, initiated this civil 20 rights action pursuant to 42 U.S.C. § 1983 on September 19, 2017 (ECF No. 1). While 21 devoid of specifics, Plaintiff’s original Complaint alleged he had been “attacked” by the 22 Imperial Beach Sheriff’s Department, and had been defamed and detained by them 23 through the use of drugged and diseased informants who used “unlawful advantage” to 24 “gain entry to [his] residence.” (Id. at 1-3.) 25 I. 26 Procedural History On October 4, 2017, the Court dismissed the case because Plaintiff failed to prepay 27 the $400 civil filing fee required by 28 U.S.C. § 1914(a), and did not file a Motion to 28 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 1 3:17-cv-01913-GPC-KSC 1 On October 24, 2017, Plaintiff filed his first Motion to Proceed IFP (ECF No. 3), 2 followed by a First Amended Complaint (“FAC”), which was accepted for filing as a 3 matter of course pursuant to FED. R. CIV. P. 15(a), on November 2, 2017 (ECF No. 5). Plaintiff’s FAC no longer names the City of Imperial Beach or its Sheriff’s 4 5 Department as Defendants; it instead alleges two San Diego Superior Court Judges, 6 Plaintiff’s public defender, and an Imperial Beach Sheriff’s Department deputy violated 7 his Fourth, Sixth, and Fourteenth Amendment rights, as well as his right to “universal 8 male sufferage,” by unlawfully arresting, representing, harassing, and detaining him. 9 (ECF No. 5 at 2-5). Plaintiff’s FAC seeks damages and injunctive relief related to his 10 ongoing criminal proceedings and demands his immediate release. (Id. at 7.) On January 10, 2018, however, the Court denied Plaintiff’s Motion to Proceed IFP, 11 12 because he failed to attach a certified copy of his prison trust account statements as 13 required by 28 U.S.C. § 1915(a)(2). See ECF No. 6 at 3-4. Plaintiff was granted leave to 14 fix this deficiency, provided the forms for doing so, and directed to re-file them within 45 15 days. (Id. at 4.) 16 On January 24, 2018, Plaintiff filed his Second Motion to Proceed IFP (ECF No. 17 7). 18 II. Second Motion to Proceed IFP 19 As Plaintiff is now well aware, all parties instituting any civil action, suit or 20 proceeding in a district court of the United States, except an application for writ of habeas 21 corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). The action may proceed 22 despite failure to prepay the entire fee only if Plaintiff is granted leave to proceed IFP 23 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th 24 Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted 25 leave to proceed IFP remain obligated to pay the entire fee in “increments” or 26 “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. 27 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of outcome. See 28 U.S.C. 28 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 2 3:17-cv-01913-GPC-KSC 1 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 2 of fees to submit an affidavit that includes a statement of all assets possessed and 3 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 4 Cir. 2015). In support of this affidavit, section 1915(a)(2) also clearly requires that 5 prisoners, like Plaintiff, “seeking to bring a civil action ... without prepayment of fees ... 6 shall submit a certified copy of the trust fund account statement (or institutional 7 equivalent) ... for the 6-month period immediately preceding the filing of the complaint.” 8 28 U.S.C. § 1915(a)(2) (emphasis added); Andrews v. King, 398 F.3d 1113, 1119 (9th 9 Cir. 2005). 10 From the certified trust account statement, the Court must assess an initial payment 11 of 20% of (a) the average monthly deposits in the account for the past six months, or (b) 12 the average monthly balance in the account for the past six months, whichever is greater, 13 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). 14 The institution having custody of the prisoner then must collect subsequent payments, 15 assessed at 20% of the preceding month’s income, in any month in which his account 16 exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. 17 See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 18 While Plaintiff has now filed a second Motion to Proceed IFP, it too fails to 19 comply with 28 U.S.C. § 1915(a)(2), because it still does not include a certified copy of 20 Plaintiff’s GBDF trust fund account statements, or an “institutional equivalent” issued by 21 GBDF officials attesting as to his trust account activity and balances for the 6-month 22 period preceding the filing of this action. See ECF No. 7; 28 U.S.C. § 1915(a)(2); S. D. 23 Cal. CivLR 3.2.b. Without this accounting, the Court remains unable to fulfill its 24 statutory duty to assess the appropriate amount of initial filing fee which may be required 25 to further prosecute Plaintiff’s case. See 28 U.S.C. § 1915(b)(1). 26 III. Conclusion and Order 27 Accordingly, IT IS ORDERED that: 28 (1) Plaintiff’s Second Motion to Proceed IFP (ECF No. 7) is DENIED and the 3 3:17-cv-01913-GPC-KSC 1 action is again DISMISSED without prejudice for failure to prepay the $400 filing fee 2 required by 28 U.S.C. § 1914(a). 3 (2) Plaintiff is GRANTED one final opportunity to correct his IFP deficiencies 4 and an additional thirty (30) days leave from the date of this Order in which to re-open 5 his case by either: (a) paying the entire $400 statutory and administrative filing fee, or (b) 6 filing a third Motion to Proceed IFP, which must include a certified copy of his GBDF 7 trust account statements for the 6-month period preceding the filing of his Complaint 8 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b).2 9 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with one more 10 Court-approved form “Motion and Declaration in Support of Motion to Proceed IFP” for 11 his use and convenience. If Plaintiff neither pays the $400 filing fee in full nor 12 sufficiently completes and files the attached Motion to Proceed IFP, together with a 13 certified copy of his trust account statements within 30 days, this civil action will 14 remained dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), and without 15 further Order of the Court. 16 17 IT IS SO ORDERED. Dated: March 1, 2018 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff is again cautioned that if he chooses to proceed either by prepaying the full $400 civil filing fee, or by submitting a properly supported Motion to Proceed IFP, his FAC (ECF No. 5), filed on November 2, 2017, and which supersedes his original pleading, see S.D. CAL. CIVLR 15.1, will be screened before service and may be dismissed sua sponte 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.”). 4 3:17-cv-01913-GPC-KSC

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