Highbaugh v. Petry et al

Filing 3

ORDER Denying 2 Motion to Proceed in Forma Pauperis and Dismissing Civil Action Without Prejudice. Signed by Judge Michael M. Anello on 2/6/24. (All non-registered users served via U.S. Mail Service)(aas)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 JACQUELINE HIGHBAUGH, Booking No. 23736394, Plaintiff, 13 14 15 16 Case No.: 24-cv-0219-MMA (KSC) vs. JESSICA PETRY, STATE OF CALIFORNIA, JUDGE EUGENIA EYHERABIDE, et al., ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING CIVIL ACTION WITHOUT PREJUDICE [Doc. No. 2] Defendants. 17 18 19 20 Jacqueline Highbaugh (“Plaintiff”), a detainee proceeding pro se, has filed a civil 21 rights complaint pursuant to 42 U.S.C. § 1983. Doc. No. 1. In lieu of paying the filing 22 fee required by 28 U.S.C. § 1914(a), Plaintiff filed a Motion to Proceed In Forma 23 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Doc. No. 2. 24 I. IFP Motion 25 All parties instituting any civil action, suit or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 $405. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 28 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 1 1 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 2 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, all prisoners who proceed IFP 3 must pay the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 4 83–84 (2016), and regardless of whether their action is ultimately dismissed. See 28 5 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 6 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 7 of fees to file an affidavit that includes a statement of all assets possessed and 8 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 9 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a 10 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 12 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 13 trust account statement, the Court assesses an initial payment of 20% of (a) the average 14 monthly deposits in the account for the past six months, or (b) the average monthly 15 balance in the account for the past six months, whichever is greater, unless the prisoner 16 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 17 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 18 preceding month’s income, in any month in which her account exceeds $10, and forwards 19 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 20 § 1915(b)(2); Bruce, 577 U.S. at 84. 21 Although Plaintiff has filed a Motion to Proceed IFP, she has not submitted a 22 certified trust account statement “for the 6-month period immediately preceding the filing 23 of the complaint.” 28 U.S.C. § 1915(a)(2). Because Plaintiff has neither paid the filing 24 fee required by 28 U.S.C. § 1914(a) to commence a civil action, nor filed a properly 25 supported Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), her case cannot yet 26 proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 27 / / / 28 / / / 2 1 II. Conclusion and Order 2 For this reason, IT IS ORDERED that: 3 (1) Plaintiff’s Motion to Proceed IFP (Doc. No. 2) is DENIED and the action is 4 DISMISSED without prejudice for failure to prepay the $405 civil filing fee required by 5 28 U.S.C. §§ 1914(a); 6 (2) Plaintiff is GRANTED forty-five (45) days from the date this Order in 7 which to re-open her case by either: (a) prepaying the entire $405 civil filing and 8 administrative fee in one lump-sum; or (b) filing a renewed Motion to Proceed IFP, 9 which includes a prison certificate, signed by a trust accounting official attesting as to 10 her trust account balances and deposits and/or a certified copy of her Inmate 11 Statement Report for the 6-month period preceding the filing of her Complaint 12 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b); and 13 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 14 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 15 Pauperis.” 16 IT IS SO ORDERED. 17 Dated: February 6, 2024 18 19 20 21 22 23 24 25 26 27 28 3

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