Pressley v. San Diego EMT Staff

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL LAMAR PRESSLEY, Case No.: 3:24-cv-1940-JLS-MMP Booking # 24711109, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA 15 PAUPERIS, AND SAN DIEGO EMT STAFF, SAN DIEGO 16 CENTRAL JAIL, VISTA DETENTION (2) DISMISSING CIVIL ACTION 17 FACILITY, SAN DIEGO SHERIFF, WITHOUT PREJUDICE FOR VISTA DETENTION DEPUTY, FAILURE TO PAY FILING FEES 18 CENTRAL JAIL DEPUTIES, REQUIRED BY 28 U.S.C. § 1914(a) 19 Defendants. (ECF No. 2) 20 21 Plaintiff Michael Lamar Pressley, a detainee proceeding pro se, has filed a civil 22 rights complaint pursuant to 42 U.S.C. § 1983. ECF No. 1 (“Compl.”). In lieu of paying 23 the filing fee required by 28 U.S.C. § 1914(a), Plaintiff filed a Motion to Proceed In Forma 24 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). ECF No. 2 (“IFP Mot.”). For the 25 reasons discussed below, the Court denies Plaintiff’s IFP Motion and dismisses the action 26 without prejudice. 27 / / / 28 / / / 1 IFP MOTION 2 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 $405.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire 5 fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant 6 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 7 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] 8 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the 9 fee[s] [a]re paid.”). 10 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 11 all assets [they] possess[,]” as well as “a certified copy of the[ir] trust fund account 12 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 13 the filing of the complaint.” 28 U.S.C. § 1915(a)(1)–(2); Andrews v. King, 398 F.3d 1113, 14 1119 (9th Cir. 2005). Using this financial information, the court “assess[es] and, when 15 funds exist, collect[s], . . . an initial partial filing fee,” which is “calculated based on ‘the 16 average monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 17 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 18 payments of 20 percent of the preceding month’s income credited to the prisoner’s 19 account.’” Hymas, 73 F.4th at 766 n.3, 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). In short, 20 while prisoners may qualify to proceed IFP without having to pay the full statutory filing 21 upfront, they remain obligated to pay the full amount due in monthly payments. See Bruce 22 v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1)–(2); Taylor v. Delatoore, 23 281 F.3d 844, 847 (9th Cir. 2002). 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. 27 Dec. 1, 2023). The additional $55 administrative fee does not apply to persons granted leave to proceed IFP. Id. 28 1 Here, Plaintiff’s IFP Motion is incomplete because he has not attached a certified 2 copy of his trust account statement for the 6-month period immediately preceding the filing 3 of his Complaint.2 See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Without a certified 4 trust account statement, the Court is unable to assess whether any initial partial filing fee 5 may be required to initiate the prosecution of Plaintiff’s case. See 28 U.S.C. § 1915(b)(1). 6 CONCLUSION 7 Accordingly, the Court: 8 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) and DISMISSES the 9 action without prejudice. See 28 U.S.C. §§ 1915(a), 1914(a). 10 (2) GRANTS Plaintiff forty-five (45) days from the date of this Order to re-open 11 his case by either: (a) prepaying the entire $405 civil filing and administrative fee in one 12 lump-sum; or (b) filing a renewed Motion to Proceed IFP, which includes a prison 13 certificate, signed by a trust accounting official attesting as to his trust account balances 14 and deposits and/or a certified copy of his Inmate Statement Report for the 6-month period 15 preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. 16 CivLR 3.2(b). 17 If Plaintiff chooses not to comply with this Order by either paying the $405 civil 18 filing and administrative fee in full or by submitting a properly supported IFP Motion 19 within forty-five (45) days, this case will remain dismissed without prejudice and without 20 further order of the Court based on Plaintiff’s failure to comply with 28 U.S.C. § 1914(a). 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 27 2 While Plaintiff includes a “prison certificate,” it was not completed or signed by an authorized officer of 28 1 (3) DIRECTS the Clerk of Court to provide Plaintiff with a court-approved form 2 ||““Motion and Declaration in Support of Motion to Proceed In Forma Pauperis.” 3 IT IS SO ORDERED. 4 ||Dated: December 18, 2024 tt 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28