Bradford v. Khamooshian et al

Filing 13

ORDER: (1) Denying 8 Motion to Excuse Exhaustion and (2) Dismissing Civil Action for Failure to Pay Filing Fees Required by 28 U.S.C. § 1914(a). Signed by Judge Cynthia Bashant on 12/6/2017. The court grants Plaintiff forty-five (45) days le ave from the date of this Order to re-open his case by: (a) prepaying the entire $400.00 civil filing and administrative fee in full or (b) completing and filing a Motion to Proceed IFP which includes both the affidavit and the certified copies of his trust account statement for the 6-month period preceding the filing of his complaint. (All non-registered users served via U.S. Mail Service)(mxn)

1
2
3
4
5
6
7
8
9
10
11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

12
13

RAYMOND ALFORD BRADFORD,
Plaintiff,

14
15
16
17
18

Case No. 17-cv-02053-BAS-MDD
ORDER:

v.
(1) DENYING MOTION TO EXCUSE
EXHAUSTION (ECF No. 8) AND

K. KHAMOOSHIAN, et al.,
Defendants.

(2) DISMISSING CIVIL ACTION
FOR FAILURE TO PAY FILING
FEES REQUIRED BY
28 U.S.C. § 1914(a)

19
20
21
22

Plaintiff Raymond Alford Bradford, currently incarcerated at Richard J. Donovan

23

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

24

civil rights action pursuant to 42 U.S.C. § 1983 on September 25, 2017, in the Eastern

25

District of California. (See ECF No. 1, Compl.)

26

Because Plaintiff claims a physician at Alvarado Hospital Medical Center and a RJD

27

doctor violated his Eighth Amendment right to adequate medical care in August and

28

September 2017 (Compl. at 1-4), United States Magistrate Judge Carolyn K. Delaney
1
17cv2053

1

determined the case should have been filed in the Southern District of California, and

2

transferred it here pursuant to 28 U.S.C. § 1406(a) on October 5, 2017 (ECF No. 4).

3

Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a), nor has

4

he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).

5

He has, however, filed a Motion requesting that he be “excused” from 42 U.S.C.

6

§ 1997e(a)’s exhaustion requirement (ECF No. 8), followed by supplemental declaration

7

and points and authorities in support of his Motion (ECF Nos. 10, 12).

8
9

I.

Failure to Pay Filing Fee or Request IFP Status

10

All parties instituting any civil action, suit, or proceeding in a district court of the

11

United States, except an application for writ of habeas corpus, must pay a filing fee of

12

$400.00. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

13

prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

14

§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

15

Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

16

proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

17

Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d

18

1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.

19

See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

20

Section 1915(a)(2) requires all persons seeking to proceed without full prepayment

21

of fees to submit an affidavit that includes a statement of all assets possessed and which

22

demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir.

23

2015). In support of this affidavit, prisoners like Plaintiff must also submit a “certified copy

24

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

25

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

26

King, 398 F.3d 1113, 1119 (9th Cir. 2005). It is from the certified trust account statement

27

that the Court assesses an initial payment of 20% of (a) the average monthly deposits in

28

the account for the past six months, or (b) the average monthly balance in the account for
2
17cv2053

1

the past six months, whichever is greater, unless he has no assets. See 28 U.S.C.

2

§ 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then

3

collects subsequent payments, assessed at 20% of the preceding month’s income, in any

4

month in which his account exceeds $10.00, and forwards those payments to the Court

5

until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

6

Plaintiff has not paid the filing fee required to commence a civil action, nor has he

7

filed a Motion to Proceed IFP, which includes both the affidavit required by 28 U.S.C.

8

§ 1915(a)(1) and the certified copies of his trust funds account statements required by 28

9

U.S.C. § 1915(a)(2). Therefore, Plaintiff’s case cannot yet proceed. See 28 U.S.C.

10

§ 1914(a); Cervantes, 493 F.3d at 1051.

11
12

II.

Motion to Excuse Exhaustion

13

Plaintiff also asks that he be “excused” from having to comply with 42 U.S.C.

14

§ 1997e(a)’s exhaustion requirement. (ECF No. 8.) Plaintiff contends Defendants

15

“deliberately failed to process and return [his] emergency appeal” related to the claims

16

alleged in his Complaint; therefore administrative remedies were not “available” to him.

17

(Id. at 4.)

18

The Prison Litigation Reform Act (“PLRA”) states that “[n]o action shall be brought

19

with respect to prison conditions under section 1983 of this title, or any other Federal law,

20

by a prisoner . . . until such administrative remedies as are available are exhausted.” 42

21

U.S.C. § 1997e(a); Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017). Plaintiff is

22

correct to note that “[t]he PLRA does not require exhaustion when circumstances render

23

administrative remedies ‘effectively unavailable.’” Andres, 867 F.3d at 1078 (quoting

24

Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)). However, the “failure to exhaust

25

is an affirmative defense under the PLRA, and . . . inmates are not required to specially

26

plead or demonstrate exhaustion in their complaints.” Albino v. Baca, 747 F.3d 1162, 1169

27

(9th Cir. 2014); Jones v. Bock, 549 U.S. 199, 204, 216 (2007).

28
3
17cv2053

1

Instead, assuming Plaintiff requests and is granted leave to proceed IFP, his

2

Complaint survives the initial screening required by 28 U.S.C. § 1915(e)(2) and § 1915A,

3

and the U.S. Marshal successfully effects service pursuant to Fed. R. Civ. P. 4(c)(3) and

4

28 U.S.C. § 1915(d), it is Defendants’ responsibility “to present probative evidence that

5

[Plaintiff] has failed to exhaust available administrative remedies under § 1997e(a).”

6

Albino, 747 F.3d at 1169. “In most circumstances, the appropriate procedural mechanism

7

is a motion for summary judgment under Federal Rule of Civil procedure 56, with the

8

defendant[s] attaching the evidence necessary to demonstrate a failure to exhaust.” Jackson

9

v. Fong, 870 F.3d 928, 933 (9th Cir. 2017) (citing Albino, 747 F.3d at 1166). “Once the

10

defendant[s] ha[ve] carried that burden, the prisoner has the burden of production. That is,

11

the burden shifts to the prisoner to come forward with evidence showing that there is

12

something in his particular case that made the existing and generally available

13

administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172.

14
15
16
17

III.

Conclusion and Order
Accordingly, the Court:
(1)

18
19

DENIES Plaintiff’s Motion to Excuse Exhaustion (ECF No. 8)
without prejudice as premature;

(2)

DISMISSES this action sua sponte without prejudice for failing to

20

pay the $400.00 civil filing and administrative fee or to submit a

21

motion to proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and

22

1915(a); and

23

(3)

GRANTS Plaintiff forty-five (45) days leave from the date of this

24

Order to re-open his case by: (a) prepaying the entire $400.00 civil

25

filing and administrative fee required by 28 U.S.C. § 1914(a) in full;

26

or (b) completing and filing a Motion to Proceed IFP which includes

27

both the affidavit and the certified copies of his trust account

28

statement for the 6-month period preceding the filing of his
4
17cv2053

1

Complaint required by 28 U.S.C. § 1915(a)(1), (2) and S.D. Cal.

2

Civ. L. R. 3.2(b).

3

If Plaintiff fails to either prepay the $400.00 civil filing fee or complete and submit

4

a Motion to Proceed IFP within the time provided, this action will remain dismissed

5

without prejudice based on Plaintiff’s failure to satisfy 28 U.S.C. § 1914(a)’s fee

6

requirements and without further Order of the Court.

7

IT IS SO ORDERED.

8
9

DATED: December 6, 2017

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
17cv2053