Lewis v. Paramo

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN DEVERICK LEWIS, Case No.: 3:22-cv-0029-GPC-DEB CDCR #J-49028 12 ORDER (1) DENYING MOTION 13 TO PROCEED IN FORMA Plaintiff, PAUPERIS (ECF No. 2) AND 14 vs. 15 (2) DISMISSING CIVIL ACTION FOR FAILING TO SATISFY THE 16 DANIEL PARAMO, Warden, A. FILING FEE REQUIRED BY 28 17 HAMMETT, J. MENDEZ, R. BATTAD, U.S.C. § 1914(A) F. GRISEZ, R. ESQUILIN, 18 Defendants. 19 20 21 Brian Deverick Lewis (“Plaintiff” or “Lewis”), an inmate currently detained at 22 California State Prison, located in Corcoran, California and proceeding pro se, has filed a 23 civil rights complaint pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. He has also 24 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See 25 ECF No. 2. 26 I. Motion to Proceed In Forma Pauperis 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, the Prison Litigation Reform Act’s 5 (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the 6 entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016); 7 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their 8 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 9 F.3d 844, 847 (9th Cir. 2002). 10 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 11 of fees to file an affidavit that includes a statement of all assets possessed and demonstrates 12 an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In 13 support of this affidavit, the PLRA also requires prisoners to submit a “certified copy of 14 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 15 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 16 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 17 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 18 for the past six months, or (b) the average monthly balance in the account for the past six 19 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 20 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects 21 subsequent payments, assessed at 20% of the preceding month’s income, in any month in 22 which his account exceeds $10, and forwards those payments to the Court until the entire 23 filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 84. 24 / / / 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to persons granted leave to 28 1 In support of his IFP Motion, Lewis has submitted a copy of his Inmate Trust 2 || Account Statement as well as a Prison Certificate completed by an accounting officer at 3 ||GPDF. See ECF No. 2 at 6-8; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 4 ||F.3d at 1119. These statements show that between June 7, 2021 and December 7, 2021, 5 || Plaintiff maintained an average monthly balance of $664.26 and had $168.86 in average 6 ||monthly deposits credited to his account. His available balance as of December 7, 2021, 7 || was $689.95. ECF No. 2 at 7. 8 In this matter, Plaintiff has not shown the indigence required to proceed IFP. 9 || Therefore, because Plaintiff has shown that he is able to pay the $402 filing fee in total, 10 || Plaintiff's Motion to Proceed IFP is DENIED. 11 Conclusion and Order 12 1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2); 13 2) DISMISSES this action without prejudice for failure to pay the full statutory 14 || and administrative $402 civil filing fee required by 28 U.S.C. § 1914(a); 15 3) Plaintiff is granted thirty (45) days leave from the date this Order is “Filed” in 16 || which to pay the $402 initial civil filing fee or provide adequate proof of his inability to 17 || pay. 18 IT IS SO ORDERED. 19 Dated: April 14, 2022 72 20 Hon. athe Cae 71 United States District Judge 22 23 24 25 26 27 28