McCoy v. Le

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICKY EUGENE McCOY, Case No.: 3:21-cv-1755-BAS-LL CDCR #BN-6712, 12 ORDER: Plaintiff, 13 v. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS PHA C. LE, DO, Physician; KERI L. 15 (ECF No. 2); LONDON, MD; PALOMAR MEDICAL 16 CENTER, AND 17 Defendants. (2) DISMISSING CIVIL ACTION 18 WITHOUT PREJUDICE FOR 19 FAILURE TO PREPAY FILING FEES 20 21 Plaintiff Ricky Eugene McCoy, a state inmate currently incarcerated in Calipatria 22 State Prison located in Calipatria, California, and proceeding pro se, has filed a civil rights 23 complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff did not pay 24 the filing fee required by 28 U.S.C. § 1914(a) to commence a civil action when he filed his 25 Complaint; instead, he filed a “Request to Waive Court Fees” on a Judicial Council of 26 California Mandatory Form, which the Court liberally construes as his Motion to Proceed 27 In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) 28 // 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. See 28 U.S.C. § 1914(a).1 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, a prisoner granted leave to proceed 8 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 9 Samuels, 577 U.S. 82, 83–84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 10 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 11 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly balance 18 in the account for the past six months, whichever is greater, unless the prisoner has no 19 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 20 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 21 month’s income, in any month in which his account exceeds $10, and forwards those 22 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 23 577 U.S. at 84‒85. 24 // 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 While Plaintiff seeks leave to proceed IFP, he has not attached a certified copy of 2 his CDCR Inmate Statement Report for the six-month period immediately preceding the 3 filing of his Complaint.2 See 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2. Section 4 1915(a)(2) clearly requires that prisoners “seeking to bring a civil action . . . without 5 prepayment of fees . . . shall submit a certified copy of the trust fund account statement (or 6 institutional equivalent) . . . for the 6-month period immediately preceding the filing of the 7 complaint.” 28 U.S.C. § 1915(a)(2) (emphasis added). Without these certified trust 8 account statements, the Court is unable to assess the appropriate amount of the initial filing 9 fee which may be statutorily required to initiate the prosecution of this case. See 28 U.S.C. 10 § 1915(b)(1). 11 II. Conclusion and Order 12 For this reason, IT IS ORDERED that: 13 (1) Plaintiff’s Motion to Proceed IFP (ECF No. 2) is DENIED and the action is 14 DISMISSED without prejudice for failure to prepay the $402 civil filing fee required by 15 28 U.S.C. §§ 1914(a); 16 (2) Plaintiff is GRANTED forty-five (45) days from the date this Order in which 17 to re-open his case by either: (a) prepaying the entire $402 civil filing and administrative 18 fee in one lump-sum; or (b) filing a renewed Motion to Proceed IFP, which includes a 19 prison certificate, signed by a CAL trust accounting official attesting as to his trust 20 21 22 2 Plaintiff has included a single page of his CDCR Inmate Statement Report that shows an available balance of only $1.43 in his account as of September 27, 2021. (See ECF No. 2 at 3.) However, this 23 Report does not include any accounting of his inmate deposits or balances for the six-month period preceding the filing of his Complaint (April‒September 2021), as required by 28 U.S.C. § 1915(a)(2). 24 Plaintiff alleges he was first “taken into custody on 1/16/21,” and the CDCR’s Inmate Locator reflects a 25 CDCR admission date of 3/30/21; therefore a full six-month history of his trust account records are available to him. (See Compl. at 3.) See also https://inmatelocator. cdcr.ca.gov/Details. aspx?ID=BN6712 26 (last visited Oct. 19, 2021). The Court may take judicial notice of public records available on online inmate locators. See United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial notice 27 of Bureau of Prisons’ inmate locator available to the public); see also Pacheco v. Diaz, 2019 WL 5073594 at *2 (E.D. Cal. Sept. 4, 2019) (taking judicial notice of CDCR’s Inmate Locator system); Foley v. Martz, 28 | || account balances and deposits and/or a certified copy of his CDCR Inmate Statement 2 || Report for the six-month period preceding the filing of his Complaint pursuant to 28 3 ||U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b); and 4 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 5 ||approved form “Motion and Declaration in Support of Motion to Proceed In Forma 6 ||Pauperis” for his use and convenience. But if Plaintiff neither pays the $402 civil filing 7 || fee in full nor sufficiently completes and files a renewed Motion to Proceed IFP with a 8 || certified copy of his six-month trust account statements within 45 days, this case will 9 ||remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), and without further 10 || Order of the Court. 11 IT IS SO ORDERED. 12 || Dated: November 19, 2021 ( fide (Diphar’ 13 on. Cynthia Bashant 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28