Hurst v. Richardson

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PATRICK DORIAN HURST, Case No.: 3:22-cv-01467-GPC-MDD Booking #22722552, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 14 28 U.S.C. § 1915(a) ZACHARY RICHARDSON, San Diego 15 Police Officer #1065, [ECF No. 3] 16 Defendant. 17 18 Plaintiff Patrick Dorian Hurst, proceeding pro se while detained at the San Diego 19 County Sheriff’s Department Las Colinas Detention and Reentry Facility in Santee, 20 California, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 26, 21 2022. See Compl., ECF No. 1. Plaintiff claims a San Diego Police Officer violated his 22 constitutional rights during an April 2022 traffic stop that resulted in his arrest. Id. at 2‒5. 23 He seeks injunctive relief preventing further harassment, $200 million in general and 24 punitive damages, and demands a jury trial. Id. at 7. 25 I. Procedural History 26 On October 4, 2022, the Court dismissed Plaintiff’s case because he failed to prepay 27 the $402 civil filing fee required by 28 U.S.C. § 1914(a), and did not file a Motion to 28 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. 1 However, the Court granted Plaintiff 45 days leave to fix these deficiencies, directed the 2 Clerk of the Court to provide him with its approved form Motion to Proceed IFP, and 3 cautioned that he must include a “certified copy of San Diego County Sheriff’s Department 4 trust account report for the 6-month period preceding the filing of his Complaint,” as 5 required by 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). See ECF No. 2 at 2‒3. 6 Plaintiff has since filed a Motion to Proceed IFP. See ECF No. 3. 7 II. Motion to Proceed IFP 8 As Plaintiff now knows, all parties instituting any civil action, suit or proceeding in 9 a district court of the United States, except an application for writ of habeas corpus, must 10 pay a filing fee of $402. See 28 U.S.C. § 1914(a). The action may proceed despite his 11 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 12 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 13 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to 14 proceed IFP remain obligated to pay the entire fee in “increments” or “installments,” Bruce 15 v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 16 2015), regardless of whether their actions are dismissed for other reasons. See 28 U.S.C. 17 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 18 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 19 of fees to submit an affidavit that includes a statement of all assets possessed and 20 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 21 Cir. 2015). In support of this affidavit, section 1915(a)(2) also clearly requires that 22 prisoners, like Hurst, “seeking to bring a civil action ... without prepayment of fees ... shall 23 submit a certified copy of the trust fund account statement (or institutional equivalent) ... 24 for the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 25 § 1915(a)(2) (emphasis added); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). 26 From the certified trust account statement, the Court assesses an initial payment of 20% of 27 (a) the average monthly deposits in the account for the past six months, or (b) the average 28 monthly balance in the account for the past six months, whichever is greater, unless the 1 prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 2 having custody of the prisoner collects subsequent payments, assessed at 20% of the 3 preceding month’s income, in any month in which his account exceeds $10, and forwards 4 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 5 Bruce, 577 U.S. at 85‒86. 6 While Plaintiff has now filed a Motion to Proceed IFP, it fails to comply with 28 7 U.S.C. § 1915(a)(2) because it does not include a certified copy of his trust fund account 8 statements, or an “institutional equivalent” issued by San Diego County Sheriff’s 9 Department officials, attesting as to his trust account activity and balances for the 6-month 10 period preceding the filing of this action. See 28 U.S.C. § 1915(a)(2); S. D. Cal. CivLR 11 3.2.b. Without this accounting, the Court is unable to fulfill its statutory duty to assess the 12 appropriate amount of initial filing fee which may be required to prosecute this case. See 13 28 U.S.C. § 1915(b)(1). 14 III. Conclusion and Order 15 Accordingly, IT IS ORDERED that: 16 (1) Plaintiff’s Motion to Proceed IFP (ECF No. 3) is DENIED and the action is 17 again DISMISSED without prejudice for failure to prepay the $402 filing fee required by 18 28 U.S.C. § 1914(a). 19 (2) Plaintiff is GRANTED one additional opportunity to correct his IFP 20 deficiencies and an additional thirty (30) days leave from the date of this Order in which 21 to re-open his case by either: (a) paying the entire $402 statutory and administrative filing 22 fee, or (b) filing a renewed Motion to Proceed IFP, which must include a certified copy of 23 his San Diego County Sheriff’s Department trust account statements for the 6-month period 24 preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. 25 CivLR 3.2(b).2 26 27 2 Plaintiff is once again cautioned that if he chooses to proceed either by prepaying the full 28 $402 civil filing fee, or by submitting a renewed and properly supported Motion to Proceed 1 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with an additional 2 ||Court-approved form “Motion and Declaration in Support of Motion to Proceed IFP” for 3 use and convenience. If Plaintiff neither pays the $402 filing fee in full nor sufficiently 4 ||completes and files the attached Motion to Proceed IFP, together with a certified copy of 5 ||his trust account statements within 30 days, this civil action will remained dismissed 6 || without prejudice pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court. 7 IT IS SO ORDERED. 8 || Dated: October 25, 2022 2 / Ok ? Hon. Gonzalo P. Curiel 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 □ 24 pursuant to 28 U.S.C. 8 1SA(p) and/or 28 U.S.C. § □□□ regardless of whether 25 pays or is obligated to pay fi ing fees. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the 26 ||court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune); see also Rhodes 97 ||v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking redress from a 2g || governmental entity or officer or employee of a governmental entity.”).