Hawkins v. San Diego Police Department

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER HAWKINS, Case No.: 3:22-cv-01727-CAB-DDL Booking #22723786, 12 ORDER DENYING MOTION TO Plaintiffs, 13 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 28 U.S.C. § 1915(a) 14 AND DISMISSING CIVIL ACTION SAN DIEGO POLICE DEPT, et al., 15 WITHOUT PREJUDICE FOR Defendants. FAILING TO PAY FILING FEES 16 REQUIRED BY 17 28 U.S.C. § 1914(a) 18 [ECF No. 2] 19 20 Plaintiff Christopher Todd Hawkins, while detained at the San Diego Central Jail 21 (“SDCJ”) and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. 22 § 1983. See Compl., ECF No. 1. Plaintiff seeks monetary damages and his “immediate 23 release” based on claims that San Diego Police Officers unlawfully detained and then 24 falsely arrested him based on the “slanderous” statements of a downtown San Diego day 25 spa property manager on January 13, 2022. Id. at 1‒7. 26 Hawkins has not prepaid the $402 civil filing fee required by 28 U.S.C. § 1914(a), 27 but instead has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 28 § 1915(a) (ECF No. 2). 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. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 7 plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but 8 nevertheless remains obligated to pay the entire fee in “increments,” see Williams v. 9 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 10 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 11 Cir. 2002). A “prisoner” is defined as “any person” who at the time of filing is 12 “incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or 13 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 14 probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 15 F.3d at 847. 16 Prisoners like Hawkins seeking leave to proceed IFP must also submit a “certified 17 copy of the[ir] trust fund account statement (or institutional equivalent) . . . for the 6-month 18 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From 19 the certified trust account statement, the Court assesses an initial payment of 20% of (a) 20 the average monthly deposits in the account for the past six months, or (b) the average 21 monthly balance in the account for the past six months, whichever is greater, unless the 22 prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. After, 23 the institution having custody of the prisoner collects subsequent payments, assessed at 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 26 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 27 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed IFP. Id. 28 1 20% of the preceding month’s income, in any month in which his account exceeds $10, 2 and forwards them to the Court until the entire filing fee is paid. See 28 U.S.C. 3 § 1915(b)(2). 4 While Hawkins has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 5 he has not attached a certified copy of his SDCJ Inmate Trust Account Activity Report for 6 the 6-month period immediately preceding the filing of his Complaint. See 28 U.S.C. 7 § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) clearly requires that prisoners 8 “seeking to bring a civil action . . . without prepayment of fees . . . shall submit a certified 9 copy of the trust fund account statement (or institutional equivalent) . . . for the 6-month 10 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) 11 (emphasis added). 12 Without his certified trust account statements, the Court is unable to assess the 13 appropriate amount of the initial filing fee which may be statutorily required to initiate the 14 prosecution of Hawkins’s case. See 28 U.S.C. § 1915(b)(1). 15 II. Conclusion and Order 16 For this reason, IT IS ORDERED that: 17 (1) Hawkins’ Motion to Proceed IFP (ECF No. 2) is DENIED and the action is 18 DISMISSED without prejudice for failure to prepay the $402 filing fee required by 28 19 U.S.C. § 1914(a). 20 (2) Hawkins is GRANTED forty-five (45) days from the date of this Order in 21 which to re-open his case by either: (1) paying the entire $402 statutory and administrative 22 filing fee in one lump-sum, or (2) filing a renewed Motion to Proceed IFP, which includes 23 a prison certificate and/or a certified copy of his SDCJ Inmate Trust Account Statement 24 for the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. 25 § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). 26 (3) The Clerk of the Court is DIRECTED to provide Hawkins with a Court- 27 approved form “Motion and Declaration in Support of Motion to Proceed IFP” for his use 28 and convenience. But if Hawkins neither pays the $402 filing fee in full, nor sufficiently 1 ||completes and files a renewed Motion to Proceed IFP, together with a certified copy of his 2 ||6-month trust account statements within 45 days, this case will remain dismissed without 3 || prejudice pursuant to 28 U.S.C. § 1914(a), and without any further Order of the Court.! 4 IT IS SO ORDERED. 5 || Dated: November 7, 2022 (fb 6 Hon. Cathy Ann Bencivengo 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ||' Hawkins is cautioned that if he chooses to re-open this case by either prepaying the full 99 $402 civil filing fee, or submitting a properly supported renewed Motion to Proceed IFP, his Complaint will be subject to a preliminary review and may be dismissed sua sponte 23 || pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays or is obligated to pay the full filing fee in installments. 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 25 permits but requires” the 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 v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 27 ||similar screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners 28 “seeking redress from a governmental entity or officer or employee of a governmental entity.”’).