Harper v. United States Marshal Service
- Proceeding
- original
- Outcome
- other — § 1915(a) allows the district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
The court considered a pro se prisoner's motion to proceed in forma pauperis (IFP) in a mandamus action. The court denied the motion and dismissed the action without prejudice because the petitioner failed to submit the required certified copy of his prison trust fund account statement.
| What the court decided | The model |
|---|---|
Motion to Proceed In Forma Pauperis (IFP) is denied.“Accordingly, Petitioner’s Motion to Proceed IFP (ECF No. 2) is DENIED” | agree with court The order states that the petitioner failed to submit the required prison certificate as mandated by 28 U.S.C. § 1915(a)(2). Under the Prison Litigation Reform Act (PLRA), a prisoner seeking IFP status must submit a certified copy of their trust fund account statement. Failure to do so is a procedural defect that prevents the court from evaluating the petitioner's financial eligibility. Therefore, denying the motion based on this omission is legally correct. |
Action is dismissed without prejudice.“and this action is DISMISSED without prejudice for failure to satisfy the filing fee requirement.” | agree with court Because the IFP motion was denied and the filing fee was not paid, the court lacks jurisdiction to proceed with the case. Dismissing without prejudice allows the petitioner to cure the defect (by paying the fee or properly filing the IFP motion) within the specified timeframe. This is the standard procedural response to a failure to pay fees or qualify for IFP status. |
The order itself: sound — The order correctly identifies the procedural requirement under 28 U.S.C. § 1915(a)(2) for prisoners to provide certified account statements. It cites relevant Ninth Circuit precedent (Andrews v. Cervantes and Andrews v. King) to support the application of this statute. The conclusion that the motion must be denied due to the missing certificate is legally sound and follows directly from the cited authorities and the facts recited in the order.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VINCENT W. HARPER, Case No. 22-cv-1511-BAS-MSB 12 Petitioner, ORDER DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) 14 UNITED STATES MARSHAL SERVICE, AND DISMISSING ACTION 15 Respondent. WITHOUT PREJUDICE (ECF No. 2)
16 17 18 19 Before the Court is Petitioner’s Motion to Proceed In Forma Pauperis (IFP) pursuant 20 to 28 U.S.C. § 1915(a). (ECF No. 2.) Petitioner Vincent W. Harper, currently housed at 21 the Otay Mesa Detention Center in San Diego, California, and proceeding pro se, has filed 22 a Petition for Writ of Mandamus pursuant to 28 U.S.C. § 1361. (ECF No. 1.) Petitioner 23 did not pay the filing fee required by 28 U.S.C. § 1914(a) to commence a civil action but 24 has instead filed the present motion. (ECF No. 2.) For the reasons discussed below, the 25 Court DENIES Petitioner’s Motion to Proceed IFP and DISMISSES the action without 26 prejudice. 27 All parties instituting any civil action, suit, or proceeding in a district court of the 28 United States must pay a filing fee of $402, with the exception of a petition for a writ of 1 ||habeas corpus for which the filing fee is $5.00.! See 28 U.S.C. § 1914(a). The action may 2 || proceed despite a failure to prepay the entire fee only if the Court grands leave to proceed 3 || IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th 4 ||Cir. 2007) (28 U.S.C. § 1915(a) allows the district court to waive the fee, for most 5 || individuals unable to afford it, by granting IFP status.”). 6 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 7 ““certified copy of the trust fund account statement (or institutional equivalent) □□□□□□ the 8 ||6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 9 ||§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). In this instance, 10 || Petitioner has failed to submit the required prison certificate. 11 Accordingly, Petitioner’s Motion to Proceed IFP (ECF No. 2) is DENIED, and this 12 |/action is DISMISSED without prejudice for failure to satisfy the filing fee requirement. 13 || To proceed with this action, Petitioner must, on or before November 22, 2022, □□□□□□□ (1) 14 || prepay the entire filing fee in full or (2) complete and file a Motion to Proceed in Forma 15 || Pauperis which complies with 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). The 16 ||Clerk of the Court will provide Petitioner with this Court’s approved form “Motion and 17 Declaration in Support of Motion to Proceed in Forma Pauperis” which includes the 18 required prison certificate. In the event Petitioner fails to timely prepay the civil filing fee 19 ||or timely complete and submit the enclosed Motion to Proceed in Forma Pauperis, the 20 || Court will enter a final judgment of dismissal. 21 IT IS SO ORDERED. 22 . ZF 23 || Dated: October 11, 2022 (yaa 24 Honorable Cynthia Bashant 25 United States District Judge 2oi}o020tti<“i‘< OO! 27 ||' In addition to the $350 statutory fee, civil litigants, other than those granted leave to 28 proceed IFP, must also pay an administrative 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)).