Jones v. Peng

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.: 21-cv-1912-MMA (LL) 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 R. PENG, et al., FAILURE TO PREPAY FILING 16 Defendants. FEES REQUIRED BY 28 U.S.C. 17 § 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 Doc. 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). Doc. No. 2. 25 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 Plaintiff has not submitted a copy of his inmate account in support of his IFP Motion 20 or an institutional equivalent. Doc. No. 2 at 1–3. The Motion to Proceed IFP fails to 21 comply with 28 U.S.C. § 1915(a)(2) because it does not include a certified copy of his trust 22 fund account statement or an “institutional equivalent” attesting as to his trust account 23 activity and balances for the 6-month period preceding the filing of this action. See 28 24 U.S.C. § 1915(a)(2); CivLR 3.2.b. Without this accounting, the Court is unable to fulfill 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 Conference Schedule of Fees, 28 | statutory duty to assess the appropriate amount of initial filing fee which may be 2 ||required to further prosecute this case. See 28 U.S.C. §1915(b)(1)._ The Court therefore 3 || DENIES Plaintiff's IFP motion without prejudice. 4 CONCLUSION 5 For the foregoing reasons, the Court DENIES Plaintiff's Motion to Proceed IFP 6 || without prejudice to Plaintiff providing the required document. The Court further 7 || DISMISSES this action without prejudice for failure to prepay the civil filing fee. Plaintiff 8 GRANTED forty-five (45) days leave from the date this Order is filed to either: 9 || (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and file 10 ||a Motion to Proceed IFP which complies with 28 U.S.C. § 1915(a)(2) and CivLR 3.2(b). 11 Court DIRECTS the Clerk of the Court to provide Plaintiff a copy of the Court’s 12 |}approved form “Motion and Declaration in Support of Motion to Proceed In Forma 13 ||Pauperis.” If Plaintiff fails to timely prepay the civil filing fee or timely complete and 14 ||submit the enclosed Motion to Proceed IFP the Court will enter a final judgment of 15 || dismissal.” 16 IT IS SO ORDERED. 17 ||Dated: November 22, 2021 18 Maite UU -{ hipltr 19 HON. MICHAEL M. ANELLO 20 United States District Judge 21 22 23 ||? Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full $402 civil filing 24 fee, or submitting a properly supported Motion to Proceed IFP, his 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. 25 || § 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 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not 26 || 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 seeks damages from defendants who are immune); see also Rhodes v. 27 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. 28 § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity’).