Barrett v. GEO
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court considered a pro se prisoner's motion to proceed in forma pauperis (IFP) in a civil rights action where the plaintiff failed to submit the required certified copy of his inmate trust fund account statement. The court denied the motion without prejudice and dismissed the action without prejudice, granting the plaintiff 45 days to either prepay the filing fee or file a compliant IFP motion.
| What the court decided | The model |
|---|---|
Motion to Proceed In Forma Pauperis (IFP) denied without prejudice“Accordingly, Plaintiff’ s Motion to Proceed In Forma Pauperis is DENIED without prejudice to Plaintiff to provide Court with the required document.” | agree with court The court correctly applied 28 U.S.C. § 1915(a)(2), which mandates that a prisoner seeking IFP status must submit a certified copy of their trust fund account statement for the preceding six months. The order recites that the plaintiff failed to provide this document, making it impossible for the court to assess the initial partial filing fee required by § 1915(b)(1). Denying the motion without prejudice is the standard procedural response to a deficient IFP application, allowing the plaintiff to cure the defect. |
Civil action dismissed without prejudice for failure to prepay filing fee“Plaintiff's Motion to Proceed IFP (ECF No. 2) is DENIED and this action is DISMISSED without prejudice for failure to prepay the filing fee as required by 28 U.S.C. 1914 (a).” | agree with court Under 28 U.S.C. § 1914(a), a civil action may not proceed unless the filing fee is paid or leave to proceed IFP is granted. Since the IFP motion was denied due to non-compliance with statutory requirements, the court lacked the authority to waive the fee. Dismissing the case without prejudice is the appropriate mechanism to enforce the fee requirement while preserving the plaintiff's right to refile or cure the deficiency within the allotted time. |
The order itself: sound — The order is procedurally sound. It correctly identifies the statutory deficiency (missing trust account statement) that prevents the court from assessing the required initial partial fee under the Prisoner Litigation Reform Act (PLRA). The court cites the correct statutes and binding Ninth Circuit precedent to support its conclusion. The remedy (denial without prejudice and dismissal without prejudice with a deadline to cure) is standard and appropriate for a pro se litigant who has failed to comply with mandatory filing requirements.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ISAIAH LAMAR BARRETT, Case No.: 21cv1603-CAB (JLB) INMATE #95410-298, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 28 U.S.C. § 1915(a) 14 AND DISMISSING CIVIL ACTION 15 WITHOUT PREJUDICE FOR GEO, et al., FAILING TO PREPAY FILING 16 Defendants. FEES REQUIRED BY 28 U.S.C. 17 § 1914(a) 18 19 20 Plaintiff Isaiah LaMar Barrett, incarcerated at the GEO Western Region Detention 21 Facility in San Diego, California, is proceeding pro se in this civil rights action pursuant to 22 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff claims he was denied his rights to free speech, 23 freedom of religion and freedom from cruel and unusual punishment. (Id. at 5-8.) He did 24 not pay the civil filing fee required by 28 U.S.C. § 1914(a) and has instead filed a Motion 25 to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) 26 I. Motion to Proceed IFP 27 All parties instituting any civil action in a district court of the United States, except 28 a petition for writ of habeas corpus, must pay a filing fee of $402, and the action may 1 proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted 2 pursuant to 28 U.S.C. § 1915(a).1 See 28 U.S.C. § 1914(a); Andrews v. Cervantes, 493 3 F.3d 1047, 1051 (9th Cir. 2007). Section 1915(a)(2) requires prisoners seeking leave to 4 proceed IFP to submit a “certified copy of the trust fund account statement (or institutional 5 equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 6 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005); 28 U.S.C. 7 § 1915(h) (defining a “prisoner” as “any person” who at the time of filing is “incarcerated 8 or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated 9 delinquent for, violations of criminal law or the terms or conditions of parole, probation, 10 pretrial release, or diversionary program.”) From the certified trust account statement, the 11 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 12 for the past six months, or (b) the average monthly balance in the account for the past six 13 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1) 14 & (4). The institution collects subsequent payments, assessed at 20% of the preceding 15 month’s income, in any month in which the account exceeds $10, and forwards those 16 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 17 Plaintiff remains obligated to pay the entire fee in monthly installments regardless of 18 whether their action is ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 19 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 20 Plaintiff has not submitted a copy of his inmate account in support of his IFP Motion 21 or an institutional equivalent. (ECF No. 2.) The Motion to Proceed IFP fails to comply 22 with 28 U.S.C. § 1915(a)(2) because it does not include a certified copy of his trust fund 23 account statement or an “institutional equivalent” attesting as to his trust account activity 24 and balances for the 6-month period preceding the filing of this action. See 28 U.S.C. 25 26 27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial 28 1 |] § 1915(a)(2); S. D. Cal. CivLR 3.2.b. Without this accounting, the Court is unable to fulfill 2 ||its statutory duty to assess the appropriate amount of initial filing fee which may be 3 || required to further prosecute this case. See 28 U.S.C. §1915(b)(1). Accordingly, Plaintiff’ s 4 || Motion to Proceed In Forma Pauperis is DENIED without prejudice to Plaintiff to provide 5 Court with the required document. 6 || II. Conclusion and Order 7 (1) Plaintiff's Motion to Proceed IFP (ECF No. 2) is DENIED and this action is 8 || DISMISSED without prejudice for failure to prepay the filing fee as required by 28 U.S.C. 9 1914 (a). 10 (2) Plaintiff is GRANTED forty-five (45) days leave from the date this Order is 11 || filed to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete 12 file a Motion to Proceed IFP which complies with 28 U.S.C. § 1915(a)(2) and S.D. 13 || Cal. CivLR 3.2(b). The Clerk of the Court will provide Plaintiff with this Court’s approved 14 || form “Motion and Declaration in Support of Motion to Proceed In Forma Pauperis.” If 15 Plaintiff fails to timely prepay the civil filing fee or timely complete and submit the 16 enclosed Motion to Proceed IFP the Court will enter a final judgment of dismissal. 17 IT IS SO ORDERED. 18 |}Dated: October 1, 2021 € Z 19 Hon. Cathy Ann Bencivengo 20 United States District Judge 21 22 23 24 25 26 27 28 3