Martinez v. Univision Communications et al

Filing 3

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. The Warden of the Federal Prison Camp, or their designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting mont hly payments from the trust account in an amount equal to 20% of the preceding month's income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). The Court direct the Clerk of the Court to serve a copy of this Order on Warden, Federal Prison Camp, P.O. Box 700, Yankton, SD 57078. Signed by Judge Larry Alan Burns on 4/25/2018. (All non-registered users served via U.S. Mail Service)(Certified copy of order mailed to the Warden of the Federal Prison Camp)(jdt) (Main Document 3 replaced on 4/27/2018) (jdt).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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OSCAR ORTIZ MARTINEZ,
Reg. No. 20895298,

Case No.: 3:18-cv-00764-LAB-BLM
ORDER:

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Plaintiff,

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1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]; AND

vs.

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UNIVISION COMMUNICATIONS;
AQUI Y AHORA TELEVISION
PROGRAM; UNKNOWN ENTITIES;
UNKNOWN INDIVIDUALS; AGENTS

3) ISSUING STAY OF CIVIL
ACTION

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Defendant.

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Oscar Ortiz Martinez (“Plaintiff”), a federal inmate currently housed at the Federal

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Prison Camp located in Yankton, South Dakota, and proceeding pro se, has filed a civil

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action (ECF No. 1). Plaintiff has not prepaid the $400 filing fee required by 28 U.S.C.

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§ 1914(a) to commence a civil action; instead, he has filed a Motion to Proceed IFP (ECF

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No. 2).

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3:18-cv-00764-LAB-BLM

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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. 1 See 28 U.S.C. § 1914(a). The 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 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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

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

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

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

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

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2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the

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

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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monthly deposits in the account for the past six months, or (b) the average monthly

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balance in the account for the past six months, whichever is greater, unless the prisoner

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

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custody of the prisoner then collects subsequent payments, assessed at 20% of the

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preceding month’s income, in any month in which his account exceeds $10, and forwards

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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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3:18-cv-00764-LAB-BLM

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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);

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Bruce, 136 S. Ct. at 629.

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In support of his IFP Motion, Plaintiff has submitted a copy of his Federal Bureau

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of Prisons Trust Account Activity. See ECF No. 2 at 2-6; 28 U.S.C. § 1915(a)(2); S.D.

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CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. This statement shows that while Plaintiff

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has had a total of $633.47 deposited to his account since October 15, 2017, he had an

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available balance of only $-20.00 at the time of filing. See ECF No. 2 at 2-6. Thus, the

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Court assesses Plaintiff’s initial partial filing fee to be $21.11 pursuant to 28 U.S.C.

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§ 1915(b)(1), but acknowledges he may be unable to pay even that initial fee at this time.

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See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited

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from bringing a civil action or appealing a civil action or criminal judgment for the

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reason that the prisoner has no assets and no means by which to pay the initial partial

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filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C.

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§ 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based

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solely on a “failure to pay . . . due to the lack of funds available to him when payment is

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ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2),

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declines to exact the initial filing fee because his trust account statement indicates he may

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have “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Warden of the

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Federal Prison Camp or their designee, to instead collect the entire $350 balance of the

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filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court

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pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). See

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id.

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In addition, because Plaintiff has been granted IFP status, his complaint requires a

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pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) which the Court will issue in a

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separate Order to follow.

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II.

Conclusion and Order

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Based on the foregoing, the Court:

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1.

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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

(ECF No. 2).
2.

DIRECTS the Warden of the Federal Prison Camp, or their designee, to

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collect from Plaintiff’s trust account the $350 filing fee owed in this case by garnishing

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monthly payments from his account in an amount equal to twenty percent (20%) of the

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preceding month’s income and forwarding those payments to the Clerk of the Court each

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time the amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2).

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ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND

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NUMBER ASSIGNED TO THIS ACTION.

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3.

DIRECTS the Clerk of the Court to serve a copy of this Order on Warden,

Federal Prison Camp, P.O. Box 700, Yankton, South Dakota, 57078.
IT IS SO ORDERED.

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Dated: April 25, 2018
HON. LARRY ALAN BURNS
United States District Judge

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3:18-cv-00764-LAB-BLM