McElroy v. Juarez

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 L.J. McELROY, aka Latwahn McElroy, Case No.: 3:20-cv-00755-GPC-RBM CDCR #P-17922, 11 ORDER DISMISSING CIVIL Plaintiffs, 12 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY 13 FILING FEE REQUIRED JAIME JUAREZ, Assoc. Chief Deputy 14 BY 28 U.S.C. § 1914(a) AND/OR Warden, et al., FAILING TO MOVE TO PROCEED 15 Defendants. IN FORMA PAUPERIS 16 PURSUANT TO 28 U.S.C. § 1915(a) 17 18 Plaintiff L.J. McElroy, currently incarcerated at North Kern State Prison 19 (“NKSP”) in Delano, California, and proceeding pro se, has filed a civil rights complaint 20 pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff claims the Warden, Chief 21 Deputy Warden, a physician, and “numerous” unnamed Richard J. Donovan Correctional 22 Facility custody and medical department officials violated his constitutional rights by 23 failing to provide proper medical care and disability accommodations for his many 24 chronic ailments, and by failing to ensure an appropriate transport to NKSP in late March 25 2020. Id. at 3‒19. 26 He has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a), 27 however, and has not filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 28 U.S.C. § 1915(a). 1 I. Failure to Pay Filing Fee or Request IFP Status 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 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s 8 (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the 9 entire fee in “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 10 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and 11 regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 12 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 13 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 14 of fees to file an affidavit that includes a statement of all assets possessed and 15 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 16 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a 17 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 18 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 20 trust account statement, the Court assesses an initial payment of 20% of (a) the average 21 monthly deposits in the account for the past six months, or (b) the average monthly 22 balance in the account for the past six months, whichever is greater, unless the prisoner 23 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 24 custody of the prisoner then collects subsequent payments, assessed at 20% of the 25 preceding month’s income, in any month in which his account exceeds $10, and forwards 26 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 27 Bruce, 136 S. Ct. at 629. 28 /// 1 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 2 commence a civil action, nor filed a properly supported Motion to Proceed IFP pursuant 3 to 28 U.S.C. § 1915(a), his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 4 493 F.3d at 1051. 5 II. Conclusion and Order 6 Accordingly, the Court: 7 (1) DISMISSES this civil action without prejudice based on Plaintiff’s failure 8 to pay the $400 civil filing and administrative fee or to submit a Motion to Proceed IFP 9 pursuant to 28 U.S.C. §§ 1914(a) and 1915(a). 10 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 11 filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) 12 complete and file a Motion to Proceed IFP which includes a certified copy of his CDCR 13 trust account statements for the 6-month period preceding the filing of his Complaint. See 14 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 15 (3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 16 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 17 Pauperis.”1 If Plaintiff fails to either prepay the $400 civil filing fee or fully complete 18 and submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 19 20 21 1 Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full $400 civil filing fee, or submitting a properly supported Motion to Proceed IFP, his 22 Complaint will be screened before service and may be dismissed sua sponte pursuant to 28 23 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full $400 filing fee at once, or is granted IFP status and is obligated to pay the full filing 24 fee in installments. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 25 (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, 26 or seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621 27 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity 28 1 || dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 2 requirement and without further Order of the Court. 3 IT IS SO ORDERED. 4 ||Dated: April 23, 2020 2 5 Hon. athe Ck 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4