Smith v. Sedighi

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 LARRY SMITH, Case No.: 3:25-cv-1100-RBM-DEB CDCR #K-91850, 10 ORDER: Plaintiff, 11 vs. (1) GRANTING MOTION FOR 12 LEAVE TO FILE EXCESS PAGES 13 [Doc. 3]; FRED SEDIGHI, et al, 14 (2) DENYING MOTION TO 15 PROCEED IN FORMA PAUPERIS Defendants. [Doc. 2]; 16 17 (3) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR 18 FAILURE TO PAY FILING FEES 19 REQUIRED BY 28 U.S.C. § 1914(a)

20 (4) DENYING MOTION FOR 21 APPOINTMENT OF COUNSEL [Doc. 4] AS MOOT; and 22 23 24 25 On April 28, 2025, Plaintiff Larry Smith (“Plaintiff”), a prisoner proceeding pro se, 26 filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging Defendants violated 27 his Eighth Amendment right to adequate medical care when they failed to properly treat 28 him for spinal abscesses and osteomyelitis. (See Doc. 1.) Plaintiff has also filed a Motion 1 to Proceed In Forma Pauperis (“IFP”), a Motion for Leave to File Excess Pages, and a 2 Motion for Appointment of Counsel. (Docs. 2–4.) For the reasons discussed below, the 3 Court GRANTS the motion to file excess pages, DENIES the IFP motion, DENIES the 4 motion for appointment of counsel without prejudice, and DISMISSES this action without 5 prejudice. 6 I. MOTION FOR LEAVE TO FILE EXCESS PAGES 7 Smith moves for leave to file excess pages of exhibits in support of his Complaint. 8 (See Doc. 4.) Under Civil Local Rule 8.2(a), pro se litigants who are incarcerated are 9 prohibited from filing complaints exceeding twenty-two (22) pages, consisting of the 10 Court’s seven-page form section 1983 complaint plus no more than fifteen additional 11 pages. See S.D. Cal. CivLR 8.2(a). While Plaintiff has submitted 58 pages of exhibits, his 12 Complaint itself is only twenty pages long. (See Doc. 1.) Thus, although the voluminous 13 exhibits (see Docs. 1-2, 1-3, 1-4) could be construed to violate the Court’s Local Rules, the 14 Court GRANTS the motion. 15 II. MOTION TO PROCEED IFP 16 Parties instituting any civil action in a district court of the United States, except an 17 application for writ of habeas corpus, must pay a filing fee of $405.1 See 28 U.S.C. 18 § 1914(a). The action may proceed despite a failure to pay the entire fee at the time of 19 filing only if the court grants the Plaintiff leave to proceed IFP pursuant to 28 U.S.C. 20 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); cf. Hymas v. 21 U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP application 22 is denied altogether, Plaintiff’s case [cannot] proceed unless and until the fee[s] [a]re 23 paid.”). 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 27 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 administrative fee does 28 not apply to persons granted leave to proceed IFP. Id. 1 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 2 all assets [they] possess[,]” as well as “a certified copy of the[ir] trust fund account 3 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 4 the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 5 1119 (9th Cir. 2005). Using this financial information, the court must assess, and when 6 funds exist, collect an “initial partial filing fee,” which is “calculated based on ‘the average 7 monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 8 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 9 payments of 20 percent of the preceding month’s income credited to the prisoner’s 10 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). In short, while 11 prisoners may qualify to proceed IFP without having to pay the full statutory filing upfront, 12 they remain obligated to pay the full amount due in monthly payments. See Bruce v. 13 Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2). 14 Here, Plaintiff’s IFP motion is incomplete. While he has included a partial copy of 15 a trust account statement, the statement is outdated. Specifically, Plaintiff has submitted a 16 single page of a trust account statement dated December 9, 2024, and including account 17 information only for November and December of 2024, instead of the required statement 18 for the six months prior to his filing of this action on April 28, 2025. (See Doc. 2 at 9.) 19 Because the financial information provided by Plaintiff is outdated and incomplete, the 20 Court cannot discern his present ability to pay the filing fee. Therefore, the IFP motion is 21 DENIED for failure to comply with 28 U.S.C. § 1915(a)(2) and as such, the case must be 22 DISMISSED without prejudice. See Williams v. Mayberg, No. C034425 MMC (PR), 2003 23 WL 22519421, at *1 (N.D. Cal. Nov. 4, 2003) (denying IFP and dismissing action because 24 the plaintiff provided only an out-of-date trust account statement); see also S.D. Cal. 25 CivLR 3.2. 26 III. MOTION FOR APPOINTMENT OF COUNSEL 27 Since the Court must dismiss the action, Plaintiff’s motion for appointment of 28 counsel (Doc. 4) is DENIED as moot, without prejudice to Plaintiff making a renewed 1 |}request should the case be reopened and should he satisfy the criteria for discretionary 2 || appointment of counsel in a civil case. 3 IV. CONCLUSION 4 Accordingly, the Court: 5 1. GRANTS Plaintiff's Motion for Leave to File Excess Pages (Doc. 3). 6 2. DENIES Plaintiff's Motion to Proceed IFP (Doc. 2) and DISMISSES the 7 || action without prejudice. See 28 U.S.C. §§ 1915(a) & 1914 (a). 8 3. DENIES Plaintiff's Motion for Appointment of Counsel (Doc. 4) without 9 || prejudice as moot. 10 4. GRANTS Plaintiff until September 15, 2025 to re-open his case by either: 11 prepaying the entire $405 civil filing and administrative fee in one lump-sum; or (b) 12 || filing a renewed Motion to Proceed IFP, which includes a prison certificate, signed by a 13 || trust accounting official attesting as to his trust account balances and deposits and/or a 14 || certified copy of his Inmate Statement Report for the 6-month period preceding the filing 15 ||of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). 16 If Plaintiff chooses not to comply with this Order by either paying the $405 civil 17 || filing fee and administrative fee in full or by submitting a properly supported IFP Motion 18 September 15, 2025, this case will remain dismissed without prejudice and without 19 || further order of the Court based on Plaintiff's failure to comply with 28 U.S.C. § 1914(a). 20 5. DIRECTS the Clerk to provide Plaintiff with a Court-approved form “Motion 21 Declaration in Support of Motion to Proceed In Forma Pauperis.” 22 IT IS SO ORDERED. 23 Dated: July 29, 2025 FR a ? L > 24 HON. RUTH BERMUDEZ MONTENEGRO 25 UNITED STATES DISTRICT JUDGE 26 27 28 VAL .. 11NN □□□□ □□□□