Bradford v. Pickett

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAYMOND ALFORD BRADFORD, Case No.: 3:20-cv-0449-AJB-MSB CDCR #H-16258 12 ORDER DENYING MOTION TO 13 PROCEED IN FORMA PAUPERIS Plaintiff, AND DISMISSING COMPLAINT 14 vs. WITHOUT PREJUDICE 15 E. PICKETT, et al., 16 Defendants. 17 18 19 Raymond Alford Bradford, (“Plaintiff”), a prisoner proceeding pro se, has filed a 20 “Motion to Proceed In Forma Pauperis.” (ECF No. 9.) 21 I. Procedural History 22 On March 9, 2020, Plaintiff filed a civil rights action pursuant to 42 U.S.C. § 1983 23 alleging Defendants used excessive force against him, in violation of his Eighth 24 Amendment rights. (See Compl., ECF No. 1.) On March 23, 2020, the Court dismissed 25 the action without prejudice because Plaintiff failed to pay the civil filing and 26 administrative fee and/or failed to submit a motion to proceed in forma pauperis (“IFP”). 27 (See Order, ECF No. 2.) The Court gave Plaintiff 30 days to either pay the $400 filing 28 / / / 1 fee or file a motion to proceed IFP. (See id. at 2.) Plaintiff did not submit a response. 2 On January 25, 2021, the Court issued an order entering judgment and closing the 3 case for failure to satisfy the filing fee or move IFP. (See ECF Nos. 4 & 5.) On February 4 16, 2021, Plaintiff filed a “Motion for Reconsideration of Order to Close Case for Failure 5 to Pay the Filing Fee,” citing Rule 60(b)(6). (Pla.’s Mot. Recons., ECF No. 7 at 1.) On 6 May 18, 2021, the Court granted Plaintiff’s Motion for Reconsideration and gave him an 7 additional 30 days to submit the filing fee or a motion to proceed in forma pauperis. (ECF 8 No. 8.) On June 8, 2021, Plaintiff filed a Motion to Proceed in Forma Pauperis. (ECF No. 9 9.) 10 II. Motion to Proceed In Forma Pauperis 11 All parties instituting any civil action, suit or proceeding in a district court of the 12 United States, except an application for writ of habeas corpus, must pay a filing fee of 13 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 14 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 15 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). If the plaintiff is 16 a prisoner at the time of filing, he may be granted leave to proceed IFP, but he 17 nevertheless remains obligated to pay the entire fee in “increments,” see Williams v. 18 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 19 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 20 Cir. 2002). A “prisoner” is defined as “any person” who at the time of filing is 21 “incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or 22 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 23 probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 24 F.3d at 847. 25 26 1 On December 1, 2020, the filing fee associated with civil actions was raised from $400 to $402. See 28 27 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). Because Plaintiff filed his Complaint on March 9, 2020, the new filing fee does not 28 1 Thus, prisoners seeking leave to proceed IFP must submit a “certified copy of 2 the[ir] trust fund account statement (or institutional equivalent) . . . for the 6-month 3 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From 4 the certified trust account statement, the Court assesses an initial payment of 20% of (a) 5 the average monthly deposits in the account for the past six months, or (b) the average 6 monthly balance in the account for the past six months, whichever is greater, unless the 7 prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. After, 8 the institution having custody of the prisoner collects subsequent payments, assessed at 9 20% of the preceding month’s income, in any month in which his account exceeds $10, 10 and forwards them to the Court until the entire filing fee is paid. See 28 U.S.C. 11 § 1915(b)(2). 12 While Bradford has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 13 he did not attach a certified copy of his California Department of Corrections and 14 Rehabilitation (“CDCR”) Inmate Trust Account Statement Report for the 6-month period 15 immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. 16 CivLR 3.2. Section 1915(a)(2) clearly requires that prisoners “seeking to bring a civil 17 action . . . without prepayment of fees . . . shall submit a certified copy of the trust fund 18 account statement (or institutional equivalent) . . . for the 6-month period immediately 19 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) (emphasis added). 20 Without his certified trust account statements, the Court is unable to assess the 21 appropriate amount of the initial filing fee which may be statutorily required to initiate 22 the prosecution of this action. See 28 U.S.C. § 1915(b)(1). 23 For this reason, IT IS ORDERED that: 24 (1) Bradford’s Motion to Proceed IFP (Doc. No. 9) is DENIED and the action 25 remains DISMISSED without prejudice for failure to prepay the $400 filing fee required 26 by 28 U.S.C. § 1914(a). 27 (2) Bradford is GRANTED thirty (30) days from the date of this Order in which 28 to re-open his case by either: (1) paying the entire $400 statutory and administrative 1 || filing fee in one lump-sum, or (2) filing a renewed Motion to Proceed IFP, which 2 includes a prison certificate and/or a certified copy of his CDCR Inmate Trust Account 3 Statement Report for the 6-month period preceding the filing of his Complaint pursuant 4 |/to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). 5 (3) The Clerk of the Court is DIRECTED to provide Bradford with a Court- 6 || approved form “Motion and Declaration in Support of Motion to Proceed IFP” for his use 7 convenience. But if Plaintiff neither pays the $400 filing fee in full, nor sufficiently 8 completes and files a renewed Motion to Proceed IFP, together with a certified copy of 9 || his 6-month trust account statements within 30 days, this case will remain dismissed 10 || without prejudice pursuant to 28 U.S.C. § 1914(a), and without any further Order of the 11 || Court. 12 IT IS SO ORDERED. 13 || Dated: June 25, 2021 © ¢ 14 Hon. Anthony J. attaglia 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28