Rasuwl v. Hays

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 SOUTHERN DISTRICT OF CALIFORNIA 5 6 ALMALIK RASUWL, Case No.: 3:19-cv-01832-MMA-WVG CDCR #BK-0601, 7 ORDER DENYING MOTION TO Plaintiff, 8 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 28 U.S.C. § 1915(a); 9 MARK HAYS; FRANK CLAMSER; 10 [Doc. No. 2] APRIL SIPPERLEY; JUSTIN WHITE, 11 Defendants. DISMISSING CIVIL ACTION 12 WITHOUT PREJUDICE FOR FAILING TO PREPAY FILING 13 FEES REQUIRED BY 14 28 U.S.C. § 1914(a) 15 16 Plaintiff Almalik Rasuwl, currently housed at the California Institution for Men 17 located in Chino, California and proceeding pro se, has filed a Complaint pursuant to the 18 Civil Rights Act, 42 U.S.C. § 1983. See Compl., Doc. No. 1. Plaintiff did not prepay the 19 civil filing fee required by 28 U.S.C. § 1914(a) at the time he submitted his Complaint, 20 but instead has filed Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 21 § 1915(a). See Doc. No. 2. 22 I. Motion to Proceed IFP 23 All parties instituting any civil action, suit or proceeding in a district court of the 24 United States, except an application for writ of habeas corpus, must pay a filing fee of 25 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 26 27 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 1 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 2 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 3 plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he 4 nevertheless remains obligated to pay the entire fee in “increments,” see Williams v. 5 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 6 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 7 (9th Cir. 2002). A “prisoner” is defined as “any person” who at the time of filing is 8 “incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or 9 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 10 probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 11 F.3d at 847. 12 Prisoners seeking leave to proceed IFP must also submit a “certified copy of the[ir] 13 trust fund account statement (or institutional equivalent) . . . for the 6-month period 14 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the 15 certified trust account statement, the Court must assess an initial payment of 20% of (a) 16 the average monthly deposits in the account for the past six months, or (b) the average 17 monthly balance in the account for the past six months, whichever is greater, unless the 18 prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. After, 19 the Court orders the institution having custody of the prisoner to collect subsequent 20 payments, assessed at 20% of the preceding month’s income, in any month in which his 21 account exceeds $10, and forward them to the Court until the entire filing fee is paid. See 22 28 U.S.C. § 1915(b)(2). 23 While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 24 he has not attached a certified copy of his Inmate Trust Account Statement Report for the 25 6-month period immediately preceding the filing of his Complaint. See 28 U.S.C. 26 27 June. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 || § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) clearly requires that prisoners 2 || “seeking to bring a civil action... without prepayment of fees .. . shall submit a certified 3 || copy of the trust fund account statement (or institutional equivalent) . . . for the 6-month 4 || period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) 5 ||(emphasis added). Without Plaintiffs certified trust account statements, the Court is 6 || unable to assess the appropriate amount of the initial filing fee which 1s statutorily 7 || required to initiate the prosecution of this action. See 28 U.S.C. § 1915(b)(1). 8 Conclusion and Order 9 Based on the foregoing, the Court (1) DENIES Plaintiff's Motion to Proceed IFP 10 ||(Doc. No. 2) and DISMISSES this action without prejudice based on his failure to 11 || prepay the $400 filing fee required by 28 U.S.C. § 1914(a); (2) GRANTS Plaintiff forty- 12 || five (45) days from the date this Order is filed to re-open the case by either: (1) paying 13 || the entire $400 statutory and administrative filing fee in one lump-sum, or (2) filing a 14 ||renewed Motion to Proceed IFP, which includes a completed prison certificate and/or a 15 || certified copy of his Inmate Trust Account Statement Report for the 6-month period 16 || preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. 17 || CivLR 3.2(b); and (3) DIRECTS the Clerk of the Court to provide Plaintiff with a Court- 18 approved form “Motion and Declaration in Support of Motion to Proceed IFP.” If 19 || Plaintiff neither pays the $400 filing fee in full, nor sufficiently completes and files a 20 renewed Motion to Proceed IFP, together with a certified copy of his 6-month Inmate 21 || Trust Account Statement Report within forty-five (45) days, this case will remain 22 dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), without any further Order 23 || of the Court. 24 IT IS SO ORDERED. 25 || DATE: October 1, 2019 Wathsu Liu- / hiypler % HON. MICHAEL M. ANELLO United States District Judge 27 28 3