Demetrius Smith v. San Diego Police Dep't, Unknown Police Officers
- Proceeding
- district
- Area
- civil
- Panel
- Jinsook Ohta (author)
Analysis
The court considered a pro se prisoner's motion to proceed in forma pauperis (IFP) in a civil rights action. The court denied the IFP motion for failure to submit a certified trust account statement and dismissed the action without prejudice, granting the plaintiff 45 days to pay the filing fee or refile a compliant IFP motion.
| What the court decided | The model |
|---|---|
Denial of Motion to Proceed In Forma Pauperis“Therefore, the IFP motion is denied.” | agree with court The court correctly applied 28 U.S.C. § 1915(a)(2), which mandates that a prisoner seeking IFP status must submit a certified copy of their trust fund account statement for the six months preceding the filing. The order recites that the plaintiff failed to include this document. Without this statutory prerequisite, the court cannot assess the initial partial filing fee required by § 1915(b)(1). The denial is procedurally sound and consistent with Ninth Circuit precedent. |
Dismissal of Civil Action Without Prejudice“DENIES Plaintiff’s motion to proceed IFP [Dkt. 2] and DISMISSES the action without prejudice.” | agree with court Under 28 U.S.C. § 1914(a), a civil action cannot be maintained without payment of the filing fee or a grant of IFP status. Since the IFP motion was denied for non-compliance with statutory requirements, the court was required to dismiss the action. Dismissing without prejudice is the standard remedy when the defect is curable (i.e., the plaintiff can pay the fee or submit the missing affidavit), allowing the plaintiff to refile or reopen the case within the specified timeframe. |
The order itself: sound — The order is procedurally correct and relies on the appropriate statutory and case law authorities. It clearly identifies the missing statutory prerequisite (the certified trust account statement) and provides a clear path for the plaintiff to cure the defect. The reasoning is concise and directly addresses the motion.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEMETRIUS SMITH, Case No.: 3:26-cv-1989-JO-LR 12 Plaintiff, ORDER: (1) DENYING MOTION 13 vs. TO PROCEED IN FORMA PAUPERIS [Dkt. 2]; 14 15 SAN DIEGO POLICE DEP’T, UNKNOWN (2) DISMISSING CIVIL ACTION POLICE OFFICERS, WITHOUT PREJUDICE FOR 16 Defendants. FAILURE TO PAY FILING FEES 17 REQUIRED BY 28 U.S.C. §1914(a); 18 19 20 Plaintiff Demetrius Smith, currently detained at Los Colinas Detention Facility and 21 proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Dkt. 1. In 22 lieu of paying the filing fee required by 28 U.S.C. § 1914(a), Plaintiff has also filed a 23 motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Dkt. 2. For 24 the reasons stated below, the Court denies Plaintiff’s IFP motion and dismisses the action 25 without prejudice. 26 I. IFP MOTION 27 A party may institute a civil action without prepaying the required filing fee if the 28 Court grants leave to proceed IFP based on indigency. 28 U.S.C. § 1915(a); Andrews v. 1 Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Plaintiffs who wish to proceed IFP must 2 establish their inability to pay by filing an affidavit regarding their income and assets. See 3 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). For prisoners to establish an 4 inability to pay, the Prison Litigation Reform Act requires submission of a “certified copy 5 of the[ir] trust fund account statement (or institutional equivalent) for . . . the 6-month 6 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); 7 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). 8 Here, Plaintiff’s IFP motion is incomplete because he has not included a certified 9 copy of his trust account statement for the six-month period immediately preceding the 10 filing of his complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Without a 11 certified trust account statement, the Court is unable to assess whether any initial partial 12 filing fee may be required to initiate the prosecution of Plaintiff’s case. See 28 U.S.C. 13 § 1915(b)(1). Therefore, the IFP motion is denied. 14 II. CONCLUSION AND ORDER 15 Accordingly, the Court: 16 (1) DENIES Plaintiff’s motion to proceed IFP [Dkt. 2] and DISMISSES the 17 action without prejudice. See 28 U.S.C. §§ 1915(a) & 1914(a). 18 (2) GRANTS Plaintiff forty-five (45) days from the date of this order to re-open 19 his case by either: (a) prepaying the entire $405 civil filing and administrative fee in one 20 lump-sum; or (b) filing a renewed motion to proceed IFP, which includes a prison 21 certificate, signed by a trust accounting official attesting as to his trust account balances 22 and deposits and/or a certified copy of his Inmate Statement Report for the 6-month period 23 preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. 24 CivLR 3.2(b). 25 If Plaintiff chooses not to comply with this order by either paying the $405 civil 26 filing fee and administrative fee in full by or submitting a properly supported IFP Motion 27 within forty-five (45) days, this case will remain dismissed without prejudice and without 28 further order of the Court based on Plaintiff’s failure to comply with 28 U.S.C. § 1914(a). 1 (3) DIRECTS the Clerk of the Court to provide Plaintiff with a Court-approved 2 “Motion and Declaration in Support of Motion to Proceed Jn Forma Pauperis.” 3 IT IS SO ORDERED. 4 ||Dated: June 15, 2026 | ~- 6 Ce Jinsook Ohta 7 United States District Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28