McCullough v. San Diego Sheriffs Department

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 XAVIER MCCULLOUGH, Case No.: 3:21-cv-1039-DMS-MDD Booking #20907499, 11 ORDER DENYING MOTION TO Plaintiff, 12 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 28 U.S.C. § 1915(a) 13 AND DISMISSING CIVIL ACTION SAN DIEGO SHERIFF’S DEP’T, et al., 14 WITHOUT PREJUDICE FOR Defendants. FAILURE TO PREPAY FILING 15 FEES REQUIRED BY 16 28 U.S.C. § 1914(a)

17 [ECF No. 2] 18 19 Plaintiff Xavier McCullough (“Plaintiff”), currently incarcerated at George Bailey 20 Detention Facility (“GBDF”), and proceeding pro se, has filed a Complaint pursuant to 21 the Civil Rights Act, 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff claims his 22 Eighth Amendment rights have been violated by San Diego County Sheriff’s Department, 23 the City of San Diego, the State of California and the United States. See id. at 2. He 24 claims conditions at GBDF are unsafe due to the COVID-19 pandemic and his health is 25 being put at risk by the purported failure of Defendants to put in place adequate safety 26 measures to protect detainees. See id. at 3–6. He seeks compensatory and punitive 27 damages. Id. at 7. 28 / / / 1 Plaintiff did not pay the civil filing fee required by 28 U.S.C. § 1914(a) at the time 2 of filing, but instead submitted a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 3 to 28 U.S.C. § 1915(a). See ECF No. 2. 4 I. Motion to Proceed IFP 5 All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $402. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). If the plaintiff is 10 a prisoner at the time of filing, he may be granted leave to proceed IFP, but he 11 nevertheless remains obligated to pay the entire fee in “increments,” see Williams v. 12 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 13 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 14 Cir. 2002). A “prisoner” is defined as “any person” who at the time of filing is 15 “incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or 16 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 17 probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 18 F.3d at 847. 19 Thus, prisoners seeking leave to proceed IFP must submit a “certified copy of 20 the[ir] trust fund account statement (or institutional equivalent) . . . for the 6-month 21 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From 22 the certified trust account statement, the Court assesses an initial payment of 20% of (a) 23 the average monthly deposits in the account for the past six months, or (b) the average 24 monthly balance in the account for the past six months, whichever is greater, unless the 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to proceed 28 1 prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. After, 2 the institution having custody of the prisoner collects subsequent payments, assessed at 3 20% of the preceding month’s income, in any month in which his account exceeds $10, 4 and forwards them to the Court until the entire filing fee is paid. See 28 U.S.C. 5 § 1915(b)(2). 6 While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 7 he did not attach a Prison Certificate or a certified copy of his Inmate Trust Account 8 Statement Report for the 6-month period immediately preceding the filing of his 9 Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) clearly 10 requires that prisoners “seeking to bring a civil action . . . without prepayment of fees . . . 11 shall submit a certified copy of the trust fund account statement (or institutional 12 equivalent) . . . for the 6-month period immediately preceding the filing of the 13 complaint.” 28 U.S.C. § 1915(a)(2) (emphasis added). Without his certified trust account 14 statements, the Court is unable to assess the appropriate amount of the initial filing fee 15 which may be statutorily required to initiate the prosecution of this action. See 28 U.S.C. 16 § 1915(b)(1). 17 II. Conclusion and Order 18 For this reason, IT IS ORDERED that: 19 (1) Plaintiff’s Motion to Proceed IFP (ECF No. 2) is DENIED and the action is 20 DISMISSED without prejudice for failure to prepay the $402 filing fee required by 28 21 U.S.C. § 1914(a). 22 (2) Plaintiff is GRANTED forty-five (45) days from the date of this Order in 23 which to re-open his case by either: (1) paying the entire $402 statutory and 24 administrative filing fee in one lump-sum, or (2) filing a renewed Motion to Proceed IFP, 25 which includes a prison certificate and/or a certified copy of his CDCR Inmate Trust 26 Account Statement Report for the 6-month period preceding the filing of his Complaint 27 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). 28 / / / 1 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 2 || approved form “Motion and Declaration in Support of Motion to Proceed IFP” for his use 3 convenience. But if Plaintiff neither pays the $402 filing fee in full, nor sufficiently 4 ||completes and files a renewed Motion to Proceed IFP, together with a certified copy of 5 || his 6-month trust account statements within 45 days, this case will remain dismissed 6 || without prejudice pursuant to 28 U.S.C. § 1914(a), and without any further Order of the 7 || Court.” 8 IT ISSO ORDERED. 9 || Dated: June 11, 2021 > J 10 a Yn. Hon. Dana M. Sabraw, Chief Judge United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 > Plaintiff is cautioned that if he chooses to proceed and re-open this case by either prepaying the full civil filing fee or filing a properly supported renewed Motion to Proceed IFP, his Complaint will be reviewed 25 || before service and may be dismissed 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- 26 || 27 (9th Cir. 2000) (en banc) (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, or 27 seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th 28 Cir. 2010) (discussing similar screening required by 28 U.S.C. $ 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.”).