Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL KAHAKU, Case No.: 26-cv-02865-WQH-BJW CDCR #J-61059, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS v. AND DISMISSING CIVIL 14 ACTION WITHOUT 15 PREJUDICE C. REDDEN, Correctional Counselor; and 16 O. MEDINA, Correctional Counselor, [ECF No. 2] 17 Defendants. 18 19 HAYES, Judge: 20 Plaintiff Daniel Kahaku, who is unrepresented and incarcerated at Ironwood State 21 Prison (“ISP”), has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 22 1), together with a motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 23 § 1915(a) (ECF No. 2). Plaintiff claims that two correctional counselors at Centinela State 24 Prison violated his First Amendment rights when they revoked his family visitation 25 privileges in retaliation for his having filed prior lawsuits and grievances alleging prison 26 staff misconduct. (See ECF No. 1 at 2–3.) Plaintiff seeks reinstatement of his privileges as 27 well as compensatory and punitive damages. (Id. at 8.) For the reasons discussed below, 28 the Court DENIES Plaintiff’s IFP motion and DISMISSES the action without prejudice. 1 I. 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 funds 15 exist, collect[s], … an initial partial filing fee,” which is “calculated based on ‘the average 16 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 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). In short, while 20 prisoners may qualify to proceed IFP without having to pay the full statutory filing upfront, 21 they remain obligated to pay the full amount due in monthly payments. See Bruce v. 22 Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 23 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 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 Plaintiff’s current motion to proceed IFP is incomplete because it does not include a 2 certified copy of his CDCR inmate trust account statements for the 6-month period 3 immediately preceding the filing of his complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. 4 CivLR 3.2.2 Without these records, or ISP’s institutional equivalent, the Court is unable to 5 determine whether Plaintiff is eligible to proceed IFP and cannot assess whether any initial 6 partial filing fee is required to initiate the prosecution of his case. See 28 U.S.C. 7 § 1915(b)(1). 8 II. CONCLUSION 9 Accordingly, the Court: 10 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2); 11 (2) DISMISSES this civil action without prejudice for failure to prepay the $405 12 civil filing fee required by 28 U.S.C. § 1914(a); 13 (3) GRANTS Plaintiff forty-five (45) days from the date this Order in which to 14 re-open this case by either: (a) paying the entire $405 civil filing and administrative fee in 15 one lump-sum; or (b) filing a renewed IFP motion, which includes a prison certificate 16 signed by a ISP accounting official attesting as to his trust account balances and deposits 17 for the 6-month period preceding the filing of his complaint pursuant to 28 U.S.C. 18 § 1915(a)(2) and S.D. Cal. CivLR 3.2(b);3 and 19 20 21 2 In fact, Plaintiff claims he was told by law library officials at ISP that his IFP “would not be processed” because e-filing from ISP to the Southern District of California “is not permitted.” (See ECF No. 1-2 at 22 1.) While e-filing from ISP may only be available in the Central District of California, see https://www.cacd.uscourts.gov/sites/default/files/general-orders/GO%2018-02.pdf, prison officials at ISP 23 must nevertheless provide Plaintiff with “a statement of all assets [he] possesses,” and specifically, a “certified copy of [his] trust fund account statement (or institutional equivalent) for … the 6-month period 24 immediately preceding the filing of [his] complaint” in this Court. 28 U.S.C. § 1915(a)(1), (2). 25 3 Plaintiff is cautioned that if he chooses to re-open the case by either prepaying the full $405 civil filing 26 fee, or by submitting a properly supported renewed motion to proceed IFP, his complaint will be subject to an initial review and may be dismissed pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. 27 § 1915(e)(2)(B), regardless of whether he pays the full $405 filing fee at once, or is granted IFP status and is required to pay the full filing fee in installments. See Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 28 1 (4) DIRECTS the Clerk of the Court to mail Plaintiff a blank form “Motion and 2 || Declaration in Support of Motion to Proceed In Forma Pauperis” for his use should he re- 3 to proceed IFP in this case. If he does, Plaintiff is advised to include S.D. Cal. Case 4 || No. 26-cv-2865-WQH-BJW in the caption of his renewed IFP motion and/or any other 5 subsequent document he wishes the Court to consider. 6 Should Plaintiff fail to pay the $405 civil filing fee in full or complete and submit a 7 ||renewed IFP motion together with the trust account certifications required by 28 U.S.C. 8 |] § 1915(a)(2) within 45 days, his case will remain dismissed without prejudice pursuant to 9 U.S.C. § 1914(a), and without further Order of the Court. 10 1] 12 Dated: June 1, 2026 BME: Me Z. Ma 13 Hon. William Q. Hayes 14 United States District Court 15 16 17 18 19 20 21 22 23 24 25 26 complaints that are frivolous, malicious, fail to state a claim, or seek damages from defendants who are 27 || immune); see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening 7g || tequired by 28 U.S.C. § 1915 of all complaints filed by prisoners “seek[ing] redress from a governmental entity or officer or employee of a governmental entity.”).