Jones v. Oceanside Police Department

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WAYNE ELIJAH JONES, Case No.: 21cv1972-JAH (JLB) INMATE #20902359, 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 OCEANSIDE POLICE DEPARTMENT, FAILING TO PREPAY FILING 16 et al., FEES REQUIRED BY 28 U.S.C. 17 Defendants. § 1914(a) 18 19 20 Plaintiff Wayne Elijah Jones, incarcerated at the Vista Detention Facility in Vista, 21 California, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. 22 (ECF No. 1.) Plaintiff did not pay the civil filing fee required by 28 U.S.C. § 1914(a) and 23 has instead filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 24 § 1915(a). (ECF No. 2.) 25 I. Motion to Proceed IFP 26 All parties instituting any civil action in a district court of the United States, except 27 a petition for writ of habeas corpus, must pay a filing fee of $402, and the action may 28 proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted 1 pursuant to 28 U.S.C. § 1915(a). See 28 U.S.C. § 1914(a); Andrews v. Cervantes, 493 2 F.3d 1047, 1051 (9th Cir. 2007). Section 1915(a)(2) requires prisoners seeking leave to 3 proceed IFP to submit a “certified copy of the trust fund account statement (or institutional 4 equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 5 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005); 28 U.S.C. 6 § 1915(h) (defining a “prisoner” as “any person” who at the time of filing is “incarcerated 7 or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated 8 delinquent for, violations of criminal law or the terms or conditions of parole, probation, 9 pretrial release, or diversionary program.”) From the certified trust account statement, the 10 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 11 for the past six months, or (b) the average monthly balance in the account for the past six 12 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1) 13 & (4). The institution collects subsequent payments, assessed at 20% of the preceding 14 month’s income, in any month in which the account exceeds $10, and forwards those 15 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 16 Plaintiff remains obligated to pay the entire fee in monthly installments regardless of 17 whether their action is ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 18 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 19 Although Plaintiff has submitted a copy of his inmate account in support of his IFP 20 Motion, it is filled out by him rather than jail authorities, and neither it nor the 21 accompanying accounting is certified. (ECF No. 2 at 4-7.) The Motion to Proceed IFP 22 fails to comply with 28 U.S.C. § 1915(a)(2) because it does not include a certified copy of 23 his trust fund account statement or an “institutional equivalent” attesting as to his trust 24 account activity and balances for the 6-month period preceding the filing of this action. 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 || See 28 U.S.C. § 1915(a)(2); S. D. Cal. CivLR 3.2.b. Without this accounting, the Court is 2 || unable to fulfill its statutory duty to assess the appropriate amount of initial filing fee which 3 ||may be required to further prosecute this case. See 28 U.S.C. §1915(b)(1). Plaintiff's [FP 4 || motion is DENIED without prejudice to Plaintiff to provide the required document. 5 | IL. Conclusion and Order 6 (1) Plaintiff's Motion to Proceed IFP (ECF No. 2) is DENIED and this action is 7 || DISMISSED without prejudice for failure to prepay the civil filing fee. 8 (2) Plaintiff is GRANTED forty-five (45) days leave from the date this Order is 9 || filed to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete 10 file a Motion to Proceed IFP which complies with 28 U.S.C. § 1915(a)(2) and S.D. 11 CivLR 3.2(b). The Clerk of the Court will provide Plaintiff with this Court’s approved 12 || form “Motion and Declaration in Support of Motion to Proceed In Forma Pauperis.” If 13 Plaintiff fails to timely prepay the civil filing fee or timely complete and submit the 14 || enclosed Motion to Proceed IFP the Court will enter a final judgment of dismissal.” 15 IT IS SO ORDERED. 16 17 || Dated: November 23, 2021 18 on. John A. Houston 19 United States District Judge 20 21 99 Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full $402 civil filing fee, or submitting a properly supported Motion to Proceed IFP, his 23 ||Complaint will be reviewed before service and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full filing fee at once or is granted IFP status. See Lopez v. Smith, 203 F.3d 1122, 1126-27 25 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, 6 fails to state a claim, or seeks damages from defendants who are immune); see also Rhodes 27 ||v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required 28 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.”)