Navarrette v. Department of Homeland Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TOMMY NAVARRETTE, Case No.: 22cv6-LL-RBM Inmate No. BMP-960, 12 ORDER (1) DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS v. [ECF No. 2] AND (2) DISMISSING 14 CIVIL ACTION WITHOUT DEPARTMENT OF HOMELAND 15 PREJUDICE FOR FAILURE TO SECURITY; JANE DOE 1 AND 2; U.S. PREPAY FILING FEES 16 CUSTOMS AND BORDER PROTECTION; METROPOLITAN 17 CORRECTION CENTER SAN DIEGO, 18 Defendants. 19 20 21 Plaintiff Tommy Navarrette, currently housed at the Santa Rita Jail located in 22 Dublin, California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 23 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff did not pay the filing fee required by 24 28 U.S.C. § 1914(a) to commence a civil action; instead, he filed a Motion to Proceed In 25 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, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $402. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 5 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 6 Samuels, 577 U.S. 82, 83–84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 7 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 8 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 10 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 12 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 13 trust account statement, the Court assesses an initial payment of 20% of (a) the average 14 monthly deposits in the account for the past six months, or (b) the average monthly balance 15 in the account for the past six months, whichever is greater, unless the prisoner has no 16 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 17 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 18 month’s income, in any month in which his account exceeds $10, and forwards those 19 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 20 577 U.S. at 84‒85. 21 While Plaintiff seeks leave to proceed IFP, he has not attached a certified copy of 22 his Inmate Statement Report for the 6-month period immediately preceding the filing of 23 his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $52. See 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 28 1 ||clearly requires that prisoners “seeking to bring a civil action . . . without prepayment of 2 ||fees .... shall submit a certified copy of the trust fund account statement (or institutional 3 || equivalent) .... for the 6-month period immediately preceding the filing of the complaint.” 4 U.S.C. § 1915(a)(2) (emphasis added). Without these certified trust account statements, 5 ||the Court is unable to assess the appropriate amount of the initial filing fee which may be 6 || statutorily required to initiate the prosecution of this case. See 28 U.S.C. § 1915(b)(1). 7 II. Conclusion and Order 8 For these reasons, IT IS ORDERED that: 9 (1) Plaintiff's Motion to Proceed IFP (ECF No. 2) is DENIED, and the action is 10 || DISMISSED without prejudice for failure to prepay the $402 civil filing fee required by 11 U.S.C. 8§ 1914(a); 12 (2) Plaintiff is GRANTED forty-five (45) days from the date of this Order in 13 which to re-open his case by either: (a) prepaying the entire $402 civil filing and 14 administrative fee in one lump-sum; or (b) filing a renewed Motion to Proceed IFP, which 15 ||includes a prison certificate, signed by a trust accounting official attesting as to his 16 || trust account balances and deposits and/or a certified copy of his Inmate Statement 17 ||Report for the 6-month period preceding the filing of his Complaint pursuant to 28 18 || U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b); and 19 (3) The Clerk of Court is DIRECTED to provide Plaintiff with a Court- approved 20 || form “Motion and Declaration in Support of Motion to Proceed In Forma Pauperis” for his 21 || use and convenience. 22 IT IS SO ORDERED. 23 ||Dated: January 25, 2022 NO 24 nF 25 Honorable Linda Lopez United States District Judge 27 28