Franco v. Coleman

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE A. FRANCO, Case No.: 3:22-cv-01728-RBM-MSB Booking #22701385, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 28 U.S.C. § 1915(a) 14 AND DISMISSING CIVIL ACTION SHANE COLEMAN, et al., 15 WITHOUT PREJUDICE FOR Defendants. FAILING TO PREPAY FILING 16 FEES REQUIRED BY 17 28 U.S.C. § 1914(a)

18 [ECF No. 2] 19 20 Plaintiff Jose A. Franco, while detained at the San Diego Central Jail (“SDCJ”) and 21 proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See 22 Compl., ECF No. 1. Plaintiff seeks $20,000,000 in general and punitive damages and seeks 23 “immediate TRO preventing contact” based on claims that Chula Vista Police Officers 24 “illegally stopped, searched and arrested” Plaintiff on January 11, 2022. Id. at 3–7. 25 Franco has not prepaid the $402 civil filing fee required by 28 U.S.C. § 1914(a), but 26 instead has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 27 § 1915(a) (ECF No. 2). 28 / / / 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 he 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 seeking leave to proceed IFP must also submit a “certified copy of the[ir] 17 trust fund account statement (or institutional equivalent) . . . for the 6-month period 18 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the 19 certified trust account statement, the Court assesses an initial payment of 20% of (a) the 20 average monthly deposits in the account for the past six months, or (b) the average monthly 21 balance in the account for the past six months, whichever is greater, unless the prisoner has 22 no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. After, the institution 23 having custody of the prisoner collects subsequent payments, assessed at 20% of the 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 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)). The additional $52 administrative fee does 28 1 preceding month’s income, in any month in which his account exceeds $10, and forwards 2 them to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 3 While Franco has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), he 4 has not attached a certified copy of his SDCJ Inmate Trust Account Activity Report for the 5 6-month period immediately preceding the filing of his Complaint. See 28 U.S.C. 6 § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) clearly requires that prisoners 7 “seeking to bring a civil action . . . without prepayment of fees . . . shall submit a certified 8 copy of the trust fund account statement (or institutional equivalent) . . . for the 6-month 9 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) 10 (emphasis added). 11 Without his certified trust account statements, the Court is unable to assess the 12 appropriate amount of the initial filing fee which may be statutorily required to initiate the 13 prosecution of Franco’s case. See 28 U.S.C. § 1915(b)(1). 14 II. Conclusion and Order 15 For this reason, IT IS ORDERED that: 16 (1) Franco’ Motion to Proceed IFP (ECF No. 2) is DENIED and the action is 17 DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28 18 U.S.C. § 1914(a). 19 (2) Franco is GRANTED forty-five (45) days from the date of this Order in 20 which to re-open his case by either: (1) paying the entire $402 statutory and administrative 21 filing fee in one lump-sum, or (2) filing a renewed Motion to Proceed IFP, which includes 22 a prison certificate and/or a certified copy of his SDCJ Inmate Trust Account Statement 23 for the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. 24 § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). 25 (3) The Clerk of the Court is DIRECTED to provide Franco with a Court- 26 approved form “Motion and Declaration in Support of Motion to Proceed IFP” for his use 27 and convenience. But if Franco neither pays the $402 filing fee in full, nor sufficiently 28 completes (must answer every question) and files a renewed Motion to Proceed IFP, 1 || together with a certified copy of his 6-month trust account statements within 45 days, this 2 will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), and without 3 || any further Order of the Court.” 4 IT IS SO ORDERED. 5 Dated: November 16, 2022 ie (Ti 2 1 f > 6 Hon. Ruth Bermudez=Montenegro 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 99 Franco is cautioned that if he chooses to proceed further by either prepaying the full $402 civil filing fee, or submitting a properly supported renewed Motion to Proceed IFP, his 23 Complaint will be reviewed before service and may be dismissed pursuant to 28 U.S.C. § 54 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays or is obligated to pay filing fees. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 25 (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte 5 dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, 6 or seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621 27 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. 28 § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.’’).