Jones v. Doe

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GERALD JONES, Case No.: 3:21-cv-01028-DMS-BGS CDCR #E-33225, 12 ORDER DENYING PLAINTIFF’S Plaintiff, 13 MOTION TO PROCEED IN FORMA vs. PAUPERIS AND DISMISSING 14 CIVIL ACTION WITHOUT JOHN AND/OR JANE DOE; WARDEN; 15 PREJUDICE FOR FAILURE TO JOHN AND JANE DOE 1-50, PAY FILING FEE REQUIRED BY 28 16 Defendants. U.S.C. § 1914(a) 17 [ECF No. 2] 18 19 20 21 22 Plaintiff Gerald Jones, currently incarcerated at Richard J. Donovan Correctional 23 Facility (“RJD”) in San Diego, California, is proceeding pro se in this case pursuant to 42 24 U.S.C. § 1983. See ECF No. 1. In addition, Plaintiff has filed a Motion to Proceed In 25 Forma Pauperis (“IFP”). See ECF No. 2. A CDCR Inmate Statement Report, along with 26 a prison trust account certificate calculating his 6-month average monthly account 27 balance and deposit, as well as his available account balance was filed on June 2, 2021. 28 See ECF No. 4. 1 I. Motion to Proceed IFP 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 $402.1 See 28 U.S.C. § 1914(a). Under 28 U.S.C. § 1915(a), the Court may authorize a 5 plaintiff to pursue a case without payment of the filing fee. Whether an affiant has 6 satisfied § 1915(a) falls within “the reviewing court[’s] . . . sound discretion.” California 7 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 8 506 U.S. 194 (1993). A party need not “be absolutely destitute” to proceed IFP. Adkins v. 9 E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff 10 seeking IFP status must allege poverty ‘with some particularity, definiteness, and 11 certainty.’” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing United 12 States v. McQuade, 647 F.3d 938, 940 (9th Cir. 1981)). 13 “An affidavit in support of an IFP application is sufficient where it alleges that the 14 affiant cannot pay the court costs and still afford the necessities of life.” Id. And while “a 15 prisoner’s financial needs are not the same as those of a non-prisoner,” and one “without 16 funds [may] not be denied access to a federal court based on his poverty,” Taylor v. 17 Delatoore, 281 F.3d 844, 849 (9th Cir. 2002) (citing 28 U.S.C. § 1915(b)(4)). 18 Before the enactment of the Prison Litigation Reform Act (“PLRA”) in 1996, 19 “indigent prisoners, like other indigent persons, could file a civil action without paying 20 any filing fee.” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016) (citing 28 U.S.C. 21 § 1915(a)(1)). The PLRA however, “placed several limitations on prisoner litigation in 22 federal courts.” Id. at 84. While his civil action or appeal may proceed upon submission 23 of an affidavit that demonstrates an “unab[ility] to pay such fees or give security 24 therefor,” 28 U.S.C. § 1915(a); see also Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th 25 26 1 For civil cases like this one, the civil litigant bringing suit must pay the $350 statutory fee in addition to 27 a $52 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The $52administrative fee does not apply to persons granted 28 1 Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999), a prisoner granted 2 leave to proceed IFP remains obligated to pay the entire fee in “increments” or 3 “installments,” Bruce 577 U.S. at 84, 85; Williams v. Paramo, 775 F.3d 1182, 1185 (9th 4 Cir. 2015), and regardless of whether his case is ultimately dismissed. See 28 U.S.C. 5 § 1915(b)(1) & (2); Taylor, 281 F.3d at 847. 6 Thus, section 1915(a)(2) requires prisoners to submit a “certified copy of the[ir] 7 trust fund account statement (or institutional equivalent) for . . . the 6-month period 8 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 9 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 10 “the district court must make a series of factual findings regarding the prisoner’s assets.” 11 Taylor, 281 F.3d at 847 n.2. It must assess an initial payment of 20% of (a) the average 12 monthly deposits in the account for the past six months, or (b) the average monthly 13 balance in the account for the past six months, whichever is greater, unless the prisoner 14 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 15 custody of the prisoner then collects subsequent payments, assessed at 20% of the 16 preceding month’s income, in any month in which his account exceeds $10, and forwards 17 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 18 Bruce, 577 U.S. at 85‒86. 19 In support of his Motion, Plaintiff has submitted a sworn declaration of assets. In 20 addition, the required prison certificate authorized by a RJD accounting official, as well 21 as a copy of his CDCR Inmate Statement Report has been filed. See ECF Nos. 2, 4; 28 22 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. But these 23 documents do not demonstrate he is “unable to pay” the $402 civil filing fee. See 28 24 U.S.C. § 1915(a). Instead, Plaintiff’s submissions show he has carried an average 25 monthly balance of $4064.64 in his trust account over the last six months, and that he had 26 an available balance of $3836.13 to his credit at the time of filing. See ECF No. 4 at 1. 27 / / / 28 / / / 1 Thus, because the Court finds Plaintiff is able pay the full $402 civil filing fee 2 ||required to commence a civil action, his Motion to Proceed IFP must be DENIED. 3 Conclusion and Orders 4 For the reasons discussed, the Court DENIES Plaintiff's Motion to Proceed IFP 5 ||(ECF No. 2) because it demonstrates he is able to pay the $402 filing fee in full and 6 || DISMISSES this civil action without prejudice based on his failure to satisfy 28 U.S.C. 7 1914(a)’s fee requirements. 8 Plaintiff may re-open this case by submitting the full $402 filing fee due by July 9 || 23, 2021.7 If he chooses this course, Plaintiff must ensure his check is submitted and 10 || made payable to the Clerk of the Court, U.S. District Court, Southern District of 11 || California, and include reference to Civil Case No. 3:21-cv-01028-DMS-BGS. 12 If Plaintiff does not submit the full $402 filing fee in one lump sum on or before 13 || July 23, 2021, the case will remain dismissed without prejudice based on his failure to 14 || pay the required filing fee and without any further Order of the Court. 15 IT IS SO ORDERED. 16 || Dated: June 7, 2021 □ gf, J 17 a Yn: 13 Hon. Dana M. Sabraw, Chief Judge United States District Court 19 20 21 22 23 ||? Plaintiff is cautioned that should he elect to re-open this case by paying the full $402 civil filing fee, his Complaint will still be subject to the mandatory initial screening required by 28 U.S.C. § 1915A. Also enacted as part of the PLRA, § 1915A requires the Court to “review, ... as soon as practicable after 25 || docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). “The court shall identify cognizable claims 26 || or dismiss the complaint, or any portion of the complaint, if the complaint—(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who 27 || is immune from such relief.” Id., subd. (b)(1), (2). “The purpose of § 1915A is ‘to ensure that the targets 28 of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).