Murillo v. Ramos

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 R. MONA MURILLO, Case No.: 22-cv-548-MMA (AGS) CDCR #P-43503, 12 ORDER DENYING PLAINTIFF’S Plaintiff, 13 MOTION TO PROCEED IN FORMA vs. PAUPERIS AND DISMISSING 14 CIVIL ACTION WITHOUT A. RAMOS; UBANO; COWART; 15 PREJUDICE FOR FAILURE TO BANUELOS; WARDEN, Richard J. PAY FILING FEE REQUIRED BY 16 Donovan Correctional Facility, 28 U.S.C. § 1914(a) 17 Defendants. [Doc. No. 11] 18 19 20 21 Plaintiff R. Mona Murillo (“Murillo” or “Plaintiff”), currently incarcerated at 22 Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, is proceeding 23 pro se in this case brought pursuant to 42 U.S.C. § 1983. See Doc. Nos. 1, 6. In addition, 24 Plaintiff has filed a Motion to Proceed In Forma Pauperis (“IFP”). See Doc. No. 11. A 25 CDCR Inmate Statement Report, along with a prison trust account certificate calculating 26 her 6-month average monthly account balance and deposit was filed on April 21, 2022, 27 and Plaintiff filed an updated trust account certificate on July 25, 2022. See Doc. Nos. 3, 28 11. 1 I. MOTION TO PROCEED IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $402.1 See 28 U.S.C. § 1914(a). Under 28 U.S.C. § 1915(a), the Court may authorize a 5 plaintiff to pursue a case without payment of the filing fee. Whether an affiant has 6 satisfied § 1915(a) falls within “the reviewing court[’s] . . . sound discretion.” California 7 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 8 506 U.S. 194 (1993). A party need not “be absolutely destitute” to proceed IFP. Adkins 9 v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff 10 seeking IFP status must allege poverty ‘with some particularity, definiteness, and 11 certainty.’” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing United 12 States v. McQuade, 647 F.3d 938, 940 (9th Cir. 1981)). 13 “An affidavit in support of an IFP application is sufficient where it alleges that the 14 affiant cannot pay the court costs and still afford the necessities of life.” Id. And while 15 “a prisoner’s financial needs are not the same as those of a non-prisoner,” and one 16 “without funds [may] not be denied access to a federal court based on his poverty,” 17 Taylor v. Delatoore, 281 F.3d 844, 849 (9th Cir. 2002) (citing 28 U.S.C. § 1915(b)(4)). 18 Before the enactment of the Prison Litigation Reform Act (“PLRA”) in 1996, 19 “indigent prisoners, like other indigent persons, could file a civil action without paying 20 any filing fee.” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016) (citing 28 U.S.C. 21 § 1915(a)(1)). The PLRA however, “placed several limitations on prisoner litigation in 22 federal courts.” Id. at 84. While her civil action or appeal may proceed upon submission 23 of an affidavit that demonstrates an “unab[ility] to pay such fees or give security 24 therefor,” 28 U.S.C. § 1915(a); see also Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th 25 26 27 1 For civil cases like this one, the civil litigant bringing suit must pay the $350 statutory fee in addition to a $52 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 28 Schedule, § 14 (eff. Dec. 1, 2020). The $52administrative fee does not apply to persons granted leave to proceed 1 Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999), a prisoner granted 2 leave to proceed IFP remains obligated to pay the entire fee in “increments” or 3 “installments,” Bruce 577 U.S. at 84, 85; Williams v. Paramo, 775 F.3d 1182, 1185 (9th 4 Cir. 2015), regardless of whether her case is ultimately dismissed. See 28 U.S.C. 5 § 1915(b)(1) & (2); Taylor, 281 F.3d at 847. 6 Thus, section 1915(a)(2) requires prisoners to submit a “certified copy of the[ir] 7 trust fund account statement (or institutional equivalent) for . . . the 6-month period 8 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 9 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 10 “the district court must make a series of factual findings regarding the prisoner’s assets.” 11 Taylor, 281 F.3d at 847 n.2. It must assess an initial payment of 20% of (a) the average 12 monthly deposits in the account for the past six months, or (b) the average monthly 13 balance in the account for the past six months, whichever is greater, unless the prisoner 14 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 15 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 16 preceding month’s income, in any month in which his account exceeds $10, and forwards 17 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 18 § 1915(b)(2); Bruce, 577 U.S. at 85‒86. 19 In support of her Motion, Plaintiff has submitted a copy of her CDCR Inmate 20 Statement Report. See Doc. No. 11. In addition, the required prison certificate 21 authorized by a RJD accounting official has been filed. See Doc. No. 3; 28 U.S.C. 22 § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. But these documents do 23 not demonstrate she is “unable to pay” the $402 civil filing fee. See 28 U.S.C. § 1915(a). 24 Instead, Plaintiff’s submissions show she has carried an average monthly deposits of 25 $1766.27 in her trust account over the last six months, and that she had an available 26 balance of $1051.32 to her credit at the time of filing. See Doc. No. 3 at 1; Doc. No. 11 27 at 6. Thus, because the Court finds Plaintiff is able pay the full $402 civil filing fee 28 required to commence a civil action, her Motion to Proceed IFP must be DENIED. ] II. CONCLUSION 2 As discussed above, the Court DENIES Plaintiff's Motion to Proceed IFP because 3 filings demonstrate she is able to pay the $402 filing fee in full. Accordingly, the 4 ||Court DISMISSES this civil action without prejudice based on Plaintiff's failure to 5 || satisfy 28 U.S.C. § 1914(a)’s fee requirements. 6 Plaintiff may re-open this case by submitting the full $402 filing fee by 7 ||September 2, 2022.” If she chooses this course, Plaintiff must ensure her check is 8 ||submitted and made payable to the Clerk of the Court, U.S. District Court, Southern 9 || District of California, and include reference to Civil Case No. 3:22-cv-00548-MMA- 10 || AGS. 11 If Plaintiff does not submit the full $402 filing fee in one lump sum on or before 12 September 2, 2022, the case will remain dismissed without prejudice based on her 13 || failure to pay the required filing fee and without any further Order of the Court. 14 IT ISSO ORDERED. 15 Dated: July 28, 2022 16 Mikel la -(Aipbtr 17 HON. MICHAEL M. ANELLO 18 United States District Judge 19 20 21 22 23 24 |)? Plaintiff is cautioned that should she elect to re-open this case by paying the full $402 civil filing fee, her Complaint will still be subject to the mandatory initial screening required by 28 U.S.C. § 1915A. Also enacted as 25 part of the PLRA, § 1915A requires the Court to “review, . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). “The court shall identify cognizable claims or dismiss the complaint, or any 27 portion of the complaint, if the complaint—(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” /d., subd. (b)(1), 28 (2). “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).