Marquez v. United States et al

Filing 4

ORDER Denying Motion to Proceed In Forma Pauperis and Dismissing Action Without Prejudice. Signed by Judge Cathy Ann Bencivengo on 3/9/2018. (Blank IFP mailed) (All non-registered users served via U.S. Mail Service)(jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVE MARQUEZ, Case No.: 3:18-cv-00434-CAB-NLS Plaintiff, 12 13 14 ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION WITHOUT PREJUDICE v. UNITED STATES, et al., Defendants. 15 16 17 18 19 Steve Marquez (“Plaintiff”), currently housed at the Larry D. Smith Correctional 20 21 Facility located in Banning, California, and proceeding pro se, has filed a civil rights 22 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. No. 1). Plaintiff has not 23 prepaid the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion 24 to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2). In 25 addition, Plaintiff has filed a Motion to Appoint Counsel (Doc. No. 3). 26 //// 27 //// 28 //// 1 3:18-cv-00434-CAB-NLS 1 I. 2 Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 7 plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he 8 nevertheless remains obligated to pay the entire fee in “increments,” see Williams v. 9 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is 10 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 11 844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” who at the time of 12 filing is “incarcerated or detained in any facility who is accused of, convicted of, 13 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 14 conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. 15 § 1915(h); Taylor, 281 F.3d at 847. 16 In order to comply with the PLRA, prisoners seeking leave to proceed IFP must 17 also submit a “certified copy of the[ir] trust fund account statement (or institutional 18 equivalent) . . . for the 6-month period immediately preceding the filing of the complaint. 19 . . .” 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court 20 assesses an initial payment of 20% of (a) the average monthly deposits in the account for 21 the past six months, or (b) the average monthly balance in the account for the past six 22 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 23 § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, the institution having custody 24 of the prisoner collects subsequent payments, assessed at 20% of the preceding month’s 25 income, in any month in which the prisoner’s account exceeds $10, and forwards them to 26 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 27 /// 28 /// 2 3:18-cv-00434-CAB-NLS 1 While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 2 he has not attached a certified copy of his trust account statements, or an institutional 3 equivalent, for the 6-month period immediately preceding the filing of his Complaint. See 4 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) clearly requires that 5 prisoners “seeking to bring a civil action . . . without prepayment of fees . . . shall submit 6 a certified copy of the trust fund account statement (or institutional equivalent) . . . for the 7 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 8 § 1915(a)(2) (emphasis added). Instead, Plaintiff has submitted a “trust account 9 summary” purportedly prepared by the San Bernardino County Sheriff dated April 20, 10 2017. (Doc. No. 2 at 5.) This statement is nearly a year old and is from an institution 11 where Plaintiff is not currently incarcerated. 12 Without Plaintiff’s current trust account statement reflecting the 6-month period 13 immediately preceding the filing of this action, the Court is simply unable to assess the 14 appropriate amount of the initial filing fee which is statutorily required to initiate the 15 prosecution of this action. See 28 U.S.C. § 1915(b)(1). 16 II. Conclusion and Order 17 For these reasons, IT IS ORDERED that: 18 (1) Plaintiff’s Motion to Proceed IFP (Doc. No. 2) is DENIED and the action is 19 DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28 20 U.S.C. § 1914(a). 21 (2) Plaintiff is GRANTED forty-five (45) days from the date of this Order in 22 which to re-open his case by either: (1) paying the entire $400 statutory and 23 administrative filing fee, or (2) filing a new Motion to Proceed IFP, which includes a 24 certified copy of his trust account statement for the 6-month period preceding the filing of 25 his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). 26 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 27 approved form “Motion and Declaration in Support of Motion to Proceed IFP” in this 28 matter. If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and 3 3:18-cv-00434-CAB-NLS 1 files the attached Motion to Proceed IFP, together with a certified copy of his trust 2 account statement within 45 days, this action will remained dismissed without prejudice 3 pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court. 4 Dated: March 9, 2018 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 3:18-cv-00434-CAB-NLS

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