Jones v. Doe et al

Filing 5

ORDER Denying 2 Plaintiff's Motion for Leave to Proceed in Forma Pauperis and Dismissing Civil Action Without Prejudice for Failure to Pay Filing Fee Required by 28 U.S.C. 1914(a). Plaintiff may re-open this case by submitting the full  6;402 filing fee due by July 23, 2021.2 If he chooses this course, Plaintiff must ensure his check is submitted and made payable to the Clerk of the Court, U.S. District Court, Southern District of California, and include reference to Civil Case No. 3:21-cv-01028-DMS-BGS. If Plaintiff does not submit the full $402 filing fee in one lump sum on or before July 23, 2021, the case will remain dismissed without prejudice based on his failure to pay the required filing fee and without any further Order of the Court. Signed by Chief District Judge Dana M. Sabraw on 6/7/2021. (All non-registered users served via U.S. Mail Service)(mme)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GERALD JONES,
CDCR #E-33225,

Case No.: 3:21-cv-01028-DMS-BGS

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vs.

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ORDER DENYING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS AND DISMISSING
CIVIL ACTION WITHOUT
PREJUDICE FOR FAILURE TO
PAY FILING FEE REQUIRED BY 28
U.S.C. § 1914(a)

Plaintiff,

JOHN AND/OR JANE DOE; WARDEN;
JOHN AND JANE DOE 1-50,

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Defendants.

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[ECF No. 2]

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Plaintiff Gerald Jones, currently incarcerated at Richard J. Donovan Correctional

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Facility (“RJD”) in San Diego, California, is proceeding pro se in this case pursuant to 42

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U.S.C. § 1983. See ECF No. 1. In addition, Plaintiff has filed a Motion to Proceed In

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Forma Pauperis (“IFP”). See ECF No. 2. A CDCR Inmate Statement Report, along with

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a prison trust account certificate calculating his 6-month average monthly account

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balance and deposit, as well as his available account balance was filed on June 2, 2021.

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See ECF No. 4.
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3:21-cv-01028-DMS-BGS

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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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$402.1 See 28 U.S.C. § 1914(a). Under 28 U.S.C. § 1915(a), the Court may authorize a

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plaintiff to pursue a case without payment of the filing fee. Whether an affiant has

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satisfied § 1915(a) falls within “the reviewing court[’s] . . . sound discretion.” California

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Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds,

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506 U.S. 194 (1993). A party need not “be absolutely destitute” to proceed IFP. Adkins v.

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E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff

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seeking IFP status must allege poverty ‘with some particularity, definiteness, and

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certainty.’” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing United

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States v. McQuade, 647 F.3d 938, 940 (9th Cir. 1981)).

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“An affidavit in support of an IFP application is sufficient where it alleges that the

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affiant cannot pay the court costs and still afford the necessities of life.” Id. And while “a

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prisoner’s financial needs are not the same as those of a non-prisoner,” and one “without

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funds [may] not be denied access to a federal court based on his poverty,” Taylor v.

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Delatoore, 281 F.3d 844, 849 (9th Cir. 2002) (citing 28 U.S.C. § 1915(b)(4)).
Before the enactment of the Prison Litigation Reform Act (“PLRA”) in 1996,

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“indigent prisoners, like other indigent persons, could file a civil action without paying

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any filing fee.” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016) (citing 28 U.S.C.

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§ 1915(a)(1)). The PLRA however, “placed several limitations on prisoner litigation in

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federal courts.” Id. at 84. While his civil action or appeal may proceed upon submission

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of an affidavit that demonstrates an “unab[ility] to pay such fees or give security

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therefor,” 28 U.S.C. § 1915(a); see also Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th

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For civil cases like this one, the civil litigant bringing suit must pay the $350 statutory fee in addition to
a $52 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The $52administrative fee does not apply to persons granted
leave to proceed IFP, however. Id.
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3:21-cv-01028-DMS-BGS

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Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999), a prisoner granted

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

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“installments,” Bruce 577 U.S. at 84, 85; Williams v. Paramo, 775 F.3d 1182, 1185 (9th

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Cir. 2015), and regardless of whether his case is ultimately dismissed. See 28 U.S.C.

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§ 1915(b)(1) & (2); Taylor, 281 F.3d at 847.
Thus, section 1915(a)(2) requires prisoners to submit a “certified copy of the[ir]

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

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

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

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“the district court must make a series of factual findings regarding the prisoner’s assets.”

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Taylor, 281 F.3d at 847 n.2. It must assess 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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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, 577 U.S. at 85‒86.

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In support of his Motion, Plaintiff has submitted a sworn declaration of assets. In

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addition, the required prison certificate authorized by a RJD accounting official, as well

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as a copy of his CDCR Inmate Statement Report has been filed. See ECF Nos. 2, 4; 28

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U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. But these

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documents do not demonstrate he is “unable to pay” the $402 civil filing fee. See 28

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U.S.C. § 1915(a). Instead, Plaintiff’s submissions show he has carried an average

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monthly balance of $4064.64 in his trust account over the last six months, and that he had

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an available balance of $3836.13 to his credit at the time of filing. See ECF No. 4 at 1.

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3:21-cv-01028-DMS-BGS

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Thus, because the Court finds Plaintiff is able pay the full $402 civil filing fee

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required to commence a civil action, his Motion to Proceed IFP must be DENIED.

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II.

Conclusion and Orders
For the reasons discussed, the Court DENIES Plaintiff’s Motion to Proceed IFP

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(ECF No. 2) because it demonstrates he is able to pay the $402 filing fee in full and

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DISMISSES this civil action without prejudice based on his failure to satisfy 28 U.S.C.

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§ 1914(a)’s fee requirements.

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Plaintiff may re-open this case by submitting the full $402 filing fee due by July
23, 2021.2 If he chooses this course, Plaintiff must ensure his check is submitted and

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made payable to the Clerk of the Court, U.S. District Court, Southern District of

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California, and include reference to Civil Case No. 3:21-cv-01028-DMS-BGS.

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If Plaintiff does not submit the full $402 filing fee in one lump sum on or before

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July 23, 2021, the case will remain dismissed without prejudice based on his failure to

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pay the required filing fee and without any further Order of the Court.

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IT IS SO ORDERED.
Dated: June 7, 2021

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Plaintiff is cautioned that should he elect to re-open this case by paying the full $402 civil filing fee, his
Complaint will still be subject to the mandatory initial screening required by 28 U.S.C. § 1915A. Also
enacted as part of the PLRA, § 1915A requires the Court to “review, … as soon as practicable after
docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental officer or
employee of a governmental entity.” 28 U.S.C. § 1915A(a). “The court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint—(1) is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who
is immune from such relief.” Id., subd. (b)(1), (2). “The purpose of § 1915A is ‘to ensure that the targets
of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d
903, 920 n.1 (9th Cir. 2014) (citation omitted).
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