Kirkley v. Barer

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE GENE KIRKLEY , Case No.: 22-cv-749-MMA (MSB) CDCR #K-84395 12 ORDER DENYING MOTION TO 13 PROCEED IN FORMA PAUPERIS Plaintiff, AND DISMISSING COMPLAINT 14 vs. WITHOUT PREJUDICE 15 DANIEL BARER, LIBBY WILSON, CEO 16 RANCHO LOS AMIGOS HOSPITAL, [Doc. No. 2] 17 Defendants. 18 19 20 Lawrence Gene Kirkley (“Plaintiff”), a state inmate currently incarcerated at 21 California State Prison, located Los Angeles County, California and proceeding pro se, 22 has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1 23 (“Compl.”). Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914(a) to 24 commence a civil action when he filed his Complaint; instead, he has filed a Motion to 25 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. 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 4 v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform 5 Act’s (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay 6 the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 7 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 8 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor 9 v. Delatoore, 281 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 12 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 13 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a 14 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 15 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 17 trust account statement, the Court assesses an initial payment of 20% of (a) the average 18 monthly deposits in the account for the past six months, or (b) the average monthly 19 balance in the account for the past six months, whichever is greater, unless the prisoner 20 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 21 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 22 preceding month’s income, in any month in which his account exceeds $10, and forwards 23 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 24 § 1915(b)(2); Bruce, 577 U.S. at 84. 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, 2020). The additional $52 administrative fee does not apply to persons granted leave to 28 1 Although Plaintiff has filed a Motion to Proceed IFP, he did not include a certified 2 account statement. See Doc. No. 2. Because Plaintiff has neither paid the filing fee 3 |{required by 28 U.S.C. § 1914(a) to commence a civil action, nor filed a properly 4 || supported Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), his case cannot yet 5 ||proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 6 Accordingly, the Court DENIES Plaintiff's Motion to Proceed IFP pursuant to 28 7 ||U.S.C. § 1914(a) and/or 28 U.S.C. § 1915(a) and DISMISSES this civil action without 8 || prejudice based on Plaintiffs failure to pay the $402 civil filing and administrative fee or 9 submit a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a). The 10 || Court GRANTS Plaintiff's Plaintiff sixty (60) days leave from the date this Order is filed 11 either: (a) prepay the entire $402 civil filing and administrative fee in full; or 12 complete and file a new Motion to Proceed IFP which includes a certified copy of his 13 || CDCR trust account statements for the 6-month period preceding the filing of his 14 || Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). The Court DIRECTS 15 Clerk of the Court to provide Plaintiff with the Court’s approved form “Motion and 16 || Declaration in Support of Motion to Proceed In Forma Pauperis.” If Plaintiff fails to 17 || either prepay the $402 civil filing fee or fully complete and submit the enclosed Motion 18 || to Proceed IFP within 60 days, this action will remain dismissed without prejudice based 19 |/on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirement and without further Order 20 || of the Court. 21 IT IS SO ORDERED. 22 Dated: May 25, 2022 23 Maite l= 1 hipllr 24 HON. MICHAEL M. ANELLO 25 United States District Judge 26 27 28