Roger J. Sysel v. Moreno, Deputy Sheriff
- Proceeding
- district
- Area
- civil
- Panel
- Barry T. Moskowitz (author)
Analysis
The court reviewed a pro se prisoner's motion to proceed in forma pauperis (IFP) and found it deficient because it lacked the required certified copy of the plaintiff's prison trust account statement. The court denied the IFP motion and dismissed the civil action without prejudice, granting the plaintiff 45 days to either pay the full filing fee or file a complete IFP motion.
| What the court decided | The model |
|---|---|
Denial of Motion to Proceed In Forma Pauperis“DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2)” | agree with court The court correctly identified that the plaintiff failed to comply with the mandatory requirements of 28 U.S.C. § 1915(a)(2) by omitting the certified trust account statement. Without this document, the court cannot calculate the initial partial filing fee required by the Prison Litigation Reform Act (PLRA). Denying the motion is the only procedural option available when the statutory prerequisites for IFP status are not met. |
Dismissal of Civil Action Without Prejudice“DISMISSES the action without prejudice” | agree with court Under 28 U.S.C. § 1915(a)(2), if a prisoner is denied IFP status, the action cannot proceed unless the full filing fee is paid. Since the IFP motion was denied for procedural deficiency, the court was required to dismiss the action. Dismissing without prejudice is appropriate because the deficiency is curable (by paying the fee or filing a complete IFP motion), and the court granted leave to cure the defect within 45 days. |
The order itself: sound — The order is procedurally sound. It correctly identifies the specific statutory deficiency (missing trust account statement) that prevents the court from granting IFP status. It applies the correct legal standard from Ninth Circuit precedent (Andrews, Hymas) and the PLRA statutes. The remedy (dismissal without prejudice with leave to cure) is standard and appropriate for a curable procedural defect in a pro se prisoner case. The order provides clear instructions for the plaintiff to cure the defect.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROGER J. SYSEL, Case No.: 3:26-cv-1618-BTM-DEB 12 Plaintiff, ORDER: (1) DENYING MOTION 13 vs. TO PROCEED IN FORMA PAUPERIS AND 14 15 MORENO, Deputy Sheriff, (2) DISMISSING CIVIL ACTION 16 Defendant. WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEES 17 REQUIRED BY 28 U.S.C. § 1914(a)
18 [ECF No. 2] 19 20 21 Plaintiff Roger J. Sysel (“Plaintiff”), currently detained at Vista Detention Facility 22 and proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. ECF 23 No. 1. In lieu of paying the filing fee required by 28 U.S.C. § 1914(a), Plaintiff has also 24 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 25 ECF No. 2. For the reasons discussed below, the Court denies Plaintiff’s IFP motion and 26 dismisses the action without prejudice. 27 I. IFP MOTION 28 All parties instituting any civil action, suit or proceeding in a district court of the 1 United States, except an application for writ of habeas corpus, must pay a filing fee of 2 $405.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire 3 fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant 4 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 5 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] 6 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the 7 fee[s] [a]re paid.”). 8 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 9 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 10 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 11 the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 12 1119 (9th Cir. 2005). Using this financial information, the court “assess[es] and when funds 13 exist, collect[s], … an initial partial filing fee,” which is “calculated based on ‘the average 14 monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 15 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 16 payments of 20 percent of the preceding month’s income credited to the prisoner’s 17 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). In short, while 18 prisoners may qualify to proceed IFP without having to pay the full statutory filing upfront, 19 they remain obligated to pay the full amount due in monthly payments. See Bruce v. 20 Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 21 F.3d 844, 847 (9th Cir. 2002). 22 Here, Plaintiff’s IFP Motion is incomplete because he has not included a certified 23 copy of his trust account statement for the 6-month period immediately preceding the filing 24 of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Without a certified 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 administrative fee does not apply to persons 28 1 || trust account statement, the Court is unable to assess whether any initial partial filing fee 2 ||may be required to initiate the prosecution of Plaintiff's case. See 28 U.S.C. § 1915(b)(1). 3 Hil. CONCLUSION AND ORDER 4 Accordingly, the Court: 5 (1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2) and DISMISSES the 6 action without prejudice. See 28 U.S.C. §§ 1915(a) & 1914 (a). 7 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 8 || to: (a) prepay the entire $405 civil filing and administrative fee in full; or (b) complete and 9 || file a properly supported motion to proceed IFP which includes a certified copy of his 10 || prison trust account statement for the 6-month period preceding the filing of his Complaint. 11 || See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 12 If Plaintiff chooses not to comply with this Order by either paying the $405 civil 13 || filing fee and administrative fee in full by or submitting a properly supported IFP Motion 14 || within forty-five (45) days, a final judgment of dismissal will be entered. 15 (3) DIRECTS the Clerk to provide Plaintiff with a Court-approved form “Motion 16 || and Declaration in Support of Motion to Proceed Jn Forma Pauperis.” 17 IT IS SO ORDERED. 18 || Dated: May 4, 2026 □□ “4 Tid Miorly a 19 Hon’Barry Ted Moskowitz 0 United States District Judge 21 22 23 24 25 26 27 28