Hudson v. San Diego Sheriff's Department

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 JEFFREY DANIEL HUDSON, Case No.: 3:22-cv-0196-CAB-RBM No. 21149533, 10 ORDER: Plaintiff, 11 v. (1) DENYING MOTION TO 12 PROCEED IN FORMA PAUPERIS SAN DIEGO SHERIFF’S 13 [ECF No. 2]; DEPARTMENT, 14 Defendants. AND 15 (2) DISMISSING CIVIL ACTION 16 WITHOUT PREJUDICE FOR 17 FAILURE TO PREPAY FILING FEES 18 19 Plaintiff Jeffrey Daniel Hudson, currently housed at the George Bailey Detention 20 Facility located in San Diego, California, and proceeding pro se, has filed a civil rights 21 complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff did not pay 22 the filing fee required by 28 U.S.C. § 1914(a) to commence a civil action; instead, he filed 23 a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF 24 No. 2.) 25 I. Motion to Proceed IFP 26 All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 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 clearly requires that prisoners “seeking to bring a civil action . . . without prepayment of 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 ||/fees ... shall submit a certified copy of the trust fund account statement (or institutional 2 equivalent) . . . for the 6-month period immediately preceding the filing of the complaint.” 3 U.S.C. § 1915(a)(2) (emphasis added). Without these certified trust account statements, 4 ||the Court is unable to assess the appropriate amount of the initial filing fee which may be 5 || statutorily required to initiate the prosecution of this case. See 28 U.S.C. § 1915(b)(). 6 Conclusion and Order 7 For this reason, IT IS ORDERED that: 8 (1) Plaintiff's Motion to Proceed IFP (ECF No. 2) is DENIED and the action is 9 || DISMISSED without prejudice for failure to prepay the $402 civil filing fee required by 10 U.S.C. §§ 1914 (a); 1] (2) Plaintiff is GRANTED forty-five (45) days from the date this Order in which 12 || to re-open his case by either: (a) prepaying the entire $402 civil filing and administrative 13 in one lump-sum; or (b) filing a renewed Motion to Proceed IFP, which includes a 14 || prison certificate, signed by a trust accounting official attesting as to his trust account 15 balances and deposits and/or a certified copy of his Inmate Statement Report for the 16 || 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) 17 S.D. Cal. CivLR 3.2(b); and 18 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 19 ||approved form “Motion and Declaration in Support of Motion to Proceed In Forma 20 || Pauperis” for his use and convenience. 21 IT IS SO ORDERED. 22 Dated: March 3, 2022 € 23 Hon. Cathy Ann Bencivengo 24 United States District Judge 25 26 27 28