Jabbar v. County of San Diego

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WALI DAVID JABBAR, Case No.: 3:20-cv-00065-JAH-NLS Booking #19735287, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 14 28 U.S.C. § 1915(a) COUNTY OF SAN DIEGO, et al., 15 Defendants. [ECF No. 3] 16 17 18 Plaintiff Wali David Jabbar, while detained at George F. Bailey Detention Facility 19 (“GBDF”) in San Diego, California, and proceeding pro se, filed this civil rights action 20 pursuant to 42 U.S.C. § 1983 on January 8, 2020. (See Compl., ECF No. 1.) Jabbar claims 21 the County of San Diego, Sheriff Gore, and Sheriff’s Department Captain Buchanan caused 22 him to develop a bacterial skin disease by failing to properly decontaminate the hair 23 clippers used by GBDF barbers. (Id. at 3.) He seeks $275,000 compensatory and punitive 24 damages, and his “release from jail[].” (Id. at 7.) 25 I. Procedural History 26 On January 16, 2020, the Court dismissed Jabbar’s case because he failed to prepay 27 the $400 civil filing fee required by 28 U.S.C. § 1914(a), and did not file a Motion to 28 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). However, 1 the Court granted Jabbar 45 days leave to fix these deficiencies, directed the Clerk of the 2 Court to provide him with its approved form Motion to Proceed IFP, and cautioned that he 3 must “include a certified copy of his prison trust account statements for the 6-month period 4 preceding the filing of his Complaint,” as required by 28 U.S.C. § 1915(a)(2) and S.D. Cal. 5 CivLR 3.2(b). (See ECF No. 2 at 2-4.) 6 Jabbar has since filed a Motion to Proceed IFP (ECF No. 3). 7 II. Motion to Proceed IFP 8 As Jabbar now knows, all parties instituting any civil action, suit or proceeding in a 9 district court of the United States, except an application for writ of habeas corpus, must 10 pay a filing fee of $400. See 28 U.S.C. § 1914(a). The action may proceed despite failure 11 to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 12 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 13 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed 14 IFP remain obligated to pay the entire fee in “increments” or “installments,” Bruce v. 15 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 16 1185 (9th Cir. 2015), and regardless of outcome. See 28 U.S.C. § 1915(b)(1) & (2); Taylor 17 v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 18 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 19 of fees to submit an affidavit that includes a statement of all assets possessed and 20 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 21 2015). In support of this affidavit, section 1915(a)(2) also clearly requires that prisoners, 22 like Jabbar, “seeking to bring a civil action ... without prepayment of fees ... shall submit a 23 certified copy of the trust fund account statement (or institutional equivalent) ... for the 6- 24 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) 25 (emphasis added); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). 26 From the certified trust account statement, the Court must assess an initial payment 27 of 20% of (a) the average monthly deposits in the account for the past six months, or (b) 28 the average monthly balance in the account for the past six months, whichever is greater, 1 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 2 institution having custody of the prisoner then must collect subsequent payments, assessed 3 at 20% of the preceding month’s income, in any month in which his account exceeds $10, 4 and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 5 § 1915(b)(2); Bruce, 136 S. Ct. at 629. 6 While Jabbar has now filed a Motion to Proceed IFP, it fails to comply with 28 7 U.S.C. § 1915(a)(2) because it does not include a certified copy of his trust fund account 8 statements, or an “institutional equivalent” issued by GBDF officials, attesting as to his 9 trust account activity and balances for the 6-month period preceding the filing of this 10 action. See 28 U.S.C. § 1915(a)(2); S. D. Cal. CivLR 3.2.b. Without this accounting, the 11 Court remains unable to fulfill its statutory duty to assess the appropriate amount of initial 12 filing fee which may be required to further prosecute his case. See 28 U.S.C. § 1915(b)(1). 13 III. Conclusion and Order 14 Accordingly, IT IS ORDERED that: 15 (1) Plaintiff’s Motion to Proceed IFP (ECF No. 3) is DENIED and the action is 16 again DISMISSED without prejudice for failure to prepay the $400 filing fee required by 17 28 U.S.C. § 1914(a). 18 (2) Plaintiff is GRANTED one additional opportunity to correct his IFP 19 deficiencies and an additional thirty (30) days leave from the date of this Order in which 20 to re-open his case by either: (a) paying the entire $400 statutory and administrative filing 21 fee, or (b) filing a renewed Motion to Proceed IFP, which must include a certified copy of 22 his GBDF trust account statements for the 6-month period preceding the filing of his 23 Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b).2 24 25 2 Plaintiff is once again cautioned that if he chooses to proceed either by prepaying the full 26 $400 civil filing fee, or by submitting a renewed and properly supported Motion to Proceed IFP, his Complaint will be screened before service and may be dismissed sua sponte 27 pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays or is obligated to pay filing fees. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th 28 Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the 1 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with one more 2 || Court-approved form “Motion and Declaration in Support of Motion to Proceed □□□□□ for 3 ||his use and convenience. If Jabbar neither pays the $400 filing fee in full nor sufficiently 4 ||completes and files the attached Motion to Proceed IFP, together with a certified copy of 5 ||his trust account statements within 30 days, this civil action will remained dismissed 6 || without prejudice pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court. 7 IT IS SO ORDERED. 8 9 || Dated: March 6, 2020 VU Lik 10 Yon. John A. Houston ll nited States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 —_ 26 fails to state a claim, or seeks damages from defendants who are immune); see also Rhodes 27 apt ate? IM Ce 200) ing ml rege 2g || governmental entity or officer or employee of a governmental entity.”). 4