Hatcher v. Ablios et al

Filing 3

ORDER Denying 2 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 is Granted thirty (30) days fr om 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 new Motion to Proceed IFP, which includes a certified copy of his trust account statement for t he 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CivLR 3.2(b). If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and files the attached Motion to Proceed IFP, together with a certified copy of his trust account statement within 45 days, this action will remained dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court. Signed by Judge William Q. Hayes on 03/27/2018. (Plaintiff served copy of this Order and blank IFP Motion form via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT HATCHER,
Inmate Booking No. 17182375,

Case No.: 3:18-cv-0562-WQH-JLB
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,

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vs.

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MRS. ABLIOS; C. BRIGHAM; KAY; F.
MICHAEL GARCIA; JACKIE
BRADEN; RANOR MIZE,
Defendants.

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[ECF No. 2]

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Robert Hatcher (“Plaintiff”), while housed at the San Diego Central Jail located in

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San Diego, California, and proceeding pro se, filed this civil rights action on March 16,

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2018. See Compl., ECF No. 1.

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Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); instead,

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

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§ 1915(a) (ECF No. 2).

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I.

Motion to Proceed IFP

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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 ultimately

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

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Cir. 2002). A “prisoner” is defined as “any person” who at the time of filing is “incarcerated

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or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated

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delinquent for, violations of criminal law or the terms or conditions of parole, probation,

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pretrial release, or diversionary program.” 28 U.S.C. § 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 also

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submit a “certified copy of the[ir] trust fund account statement (or institutional equivalent)

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... for the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2). From the certified trust account statement, the Court assesses an initial

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payment of 20% of (a) the average monthly deposits in the account for the past six months,

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or (b) the average monthly balance in the account for the past six months, whichever is

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greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); see Taylor, 281

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F.3d at 850. Thereafter, the institution having custody of the prisoner collects subsequent

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

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prisoner’s account exceeds $10, and forwards them to the Court until the entire filing fee

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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 a certified copy of his trust account statements for the 6-month period

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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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immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL.

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CIVLR 3.2. Section 1915(a)(2) clearly requires that prisoners “seeking to bring a civil

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action ... without prepayment of fees ... shall submit a certified copy of the trust fund

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account statement (or institutional equivalent) ... for the 6-month period immediately

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

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Without Plaintiff’s 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 these reasons, IT IS ORDERED that:

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(1)

Plaintiff’s Motion to Proceed IFP (ECF No. 2) 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 thirty (30) days from the date of this Order in which

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

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fee, or (2) filing a new Motion to Proceed IFP, which includes a certified copy of his trust

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account statement for the 6-month period preceding the filing of his Complaint pursuant to

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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 trust account

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statement within 45 days, this action will remained dismissed without prejudice pursuant

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

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IT IS SO ORDERED.
Dated: March 27, 2018

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