Murillo v. Ramos

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 R. MONA MURILLO, Case No.: 22-cv-548-MMA (AGS) CDCR #P-43503, 11 ORDER DENYING MOTION TO Plaintiff, 12 PROCEED IN FORMA PAUPERIS; vs. 13 [Doc. No. 15]

14 A. RAMOS, et al., DISMISSING CIVIL ACTION FOR 15 Defendants. FAILURE TO PAY THE FILING 16 FEE REQUIRED BY 28 U.S.C. § 1914(a); AND 17 18 DENYING MOTION REQUESTING COURT TO ORDER RJD/CDCR TO 19 PROVIDE INMATE TRUST 20 ACCOUNT REPORT AS MOOT 21 [Doc. No. 16] 22 23 24 R. Mona Murillo (“Plaintiff” or “Murillo”), currently incarcerated at the Richard J. 25 Donovan State Prison (“RJD”) located in San Diego, California, and proceeding pro se, 26 filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Doc. No. 1 (“Compl.”). This 27 pleading was initially rejected by the Court for failure to comply with General Order 28 653A, see Doc. No. 2, but the Court later permitted Plaintiff to file a First Amended 1 Complaint (“FAC”). Doc. No. 6. Plaintiff did not prepay the civil filing fee required by 2 28 U.S.C. § 1914(a); instead, she filed a Motion to Proceed In Forma Pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915(a). Doc. No. 11. On July 28, 2022, the Court denied 4 Plaintiff’s Motion to Proceed IFP because Plaintiff’s trust account statements indicated 5 that she had sufficient funds to pay the $402 filing fee in full. Doc. No. 12. Plaintiff was 6 given until September 2, 2022, to pay the initial civil filing fee in order to re-open this 7 action. See id. 8 Instead of paying the initial civil filing fee, Plaintiff has filed a renewed Motion to 9 Proceed IFP, along with a “Motion Requesting the Court to Order RJD/CDCR to provide 10 an Inmate Trust Account Report.” Doc. Nos. 15, 16. The Court DENIES Plaintiff’s 11 Motion as moot in light of the filing of her current trust account statement on September 12 20, 2022. Doc. No. 17. 13 I. REQUEST TO PROCEED IN FORMA PAUPERIS 14 All parties instituting any civil action, suit or proceeding in a district court of the 15 United States, except an application for writ of habeas corpus, must pay a filing fee of 16 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 17 prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. 18 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 19 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to 20 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 21 Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 22 Cir. 2015), and regardless of whether her action is ultimately dismissed. See 28 U.S.C. 23 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 24 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 25 26 1 For civil cases filed after December 1, 2020, the civil litigant bringing suit must pay the $350 statutory 27 fee in addition to a $52 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The $52 administrative fee does not 28 1 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 2 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 3 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 4 trust account statement, the Court assesses an initial payment of 20% of (a) the average 5 monthly deposits in the account for the past six months, or (b) the average monthly 6 balance in the account for the past six months, whichever is greater, unless the prisoner 7 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 8 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 9 preceding month’s income, in any month in which his account exceeds $10, and forwards 10 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 11 1915(b)(2); Bruce, 577 U.S. at 84. 12 In support of her request to proceed IFP, Plaintiff’s prison certificate authorized by 13 an RJD accounting official and a copy of her CDCR Inmate Statement Report has, once 14 again, been submitted. See Doc. No. 17; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; 15 Andrews, 398 F.3d at 1119. These documents show that for the preceding six months, 16 Plaintiff carried an average monthly balance of $2,302.06 and average monthly deposits 17 of $418.99. See Doc. No. 17. The balance in Plaintiff’s trust account as of September 20, 18 2022, was $2,312.41. Id. Plaintiff, once again, has not shown the indigence required to 19 proceed IFP. Therefore, because Plaintiff is able to pay the filing fee in total, Plaintiff’s 20 Motion to Proceed IFP is DENIED. This is Plaintiff’s second Motion to Proceed IFP and 21 in this filing, Plaintiff has more funds than she did when she filed her first Motion to 22 Proceed IFP. No further Motions to Proceed IFP will be considered in this matter. If 23 Plaintiff does not pay the initial civil filing fee within the time set forth below, the Court 24 will enter a final order dismissing this action for failure to pay the initial civil filing fee 25 and for failure to comply with the Court’s Order. 26 II. CONCLUSION 27 For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Court Order 28 as moot (Doc. No. 16), DENIES Plaintiff’s Motion to Proceed IFP (Doc. No. 15), and 1 || DISMISSES this action without prejudice for failure to pay the full statutory and 2 |}administrative $402 civil filing fee required by 28 U.S.C. § 1914(a). Plaintiff is granted 3 || forty-five (45) days leave from the date this Order is “Filed” in which to pay the $402 4 initial civil filing fee. 5 IT IS SO ORDERED. 6 Dated: November 15, 2022 7 Matha UJu- (ikl 8 HON. MICHAEL M. ANELLO 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 ee