Tofollaochoa v. Castro

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANGEL TOFOLLAOCHOA, Case No.: 3:22-cv-1929-CAB-AHG CDCR# BF1929, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO PAY vs. FILING FEES REQUIRED BY 14 28 U.S.C. § 1914(a) A. CASTRO, Correctional Officer, 15 Defendant. 16 17 18 Angel Tofolloaochoa (“Plaintiff”), a state prisoner proceeding pro se, has filed a 19 civil rights complaint pursuant to 42 U.S.C. § 1983. See ECF No. 1. He alleges Defendant 20 violated his Eighth Amendment rights when he failed to protect Plaintiff from being 21 assaulted by fellow inmates. Id. at 3–12. Plaintiff seeks compensatory and punitive 22 damages, and injunctive relief. Id. at 16. 23 I. Failure to Pay Filing Fee or Request IFP Status 24 All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 $402. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 27 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 28 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 1 2007) (“Cervantes”); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, 2 a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in 3 “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016); Williams v. 4 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is 5 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 6 847 (9th Cir. 2002). 7 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 8 of fees to submit an affidavit that includes a statement of all assets possessed and which 9 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 10 2015). In support of this affidavit, prisoners like Plaintiff must also submit a “certified copy 11 of the trust fund account statement (or institutional equivalent) for . . . the 6-month period 12 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 13 King, 398 F.3d 1113, 1119 (9th Cir. 2005). It is from the certified trust account statement 14 that the Court assesses an initial payment of 20% of (a) the average monthly deposits in 15 the account for the past six months, or (b) the average monthly balance in the account for 16 the past six months, whichever is greater, unless he has no assets. See 28 U.S.C. 17 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then 18 collects subsequent payments, assessed at 20% of the preceding month’s income, in any 19 month in which his account exceeds $10, and forwards those payments to the Court until 20 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 84. 21 Here, Plaintiff has not paid pay the filing fee required to commence a civil action, 22 nor has he filed a Motion to Proceed IFP. While he has submitted a copy of his trust account 23 statement (ECF No. 3), this statement, by itself, is insufficient to comply with § 1915, 24 which requires which includes both the affidavit, 28 U.S.C. § 1915(a)(1), and a certified 25 copy of his trust funds account statement. 28 U.S.C. § 1915(a)(2). Therefore, Plaintiff’s 26 case cannot yet proceed. See 28 U.S.C. § 1914(a); Cervantes, 493 F.3d at 1051. 27 II. Conclusion and Order 28 For the reason explained above, the Court: 1 (1) DISMISSES this action sua sponte without prejudice for failing to pay the 2 $402 civil filing and administrative fee or to submit a motion to proceed IFP pursuant to 3 U.S.C. §§ 1914(a) and 1915(a); and 4 (2) GRANTS Plaintiff forty-five (45) days leave from the date of this Order to 5 ||re-open this case by: (a) prepaying the entire $402 civil filing and administrative fee 6 || required by 28 U.S.C. § 1914(a) in full; or (b) completing and filing a Motion to Proceed 7 || which includes both the affidavit and the certified copies of his trust account statement 8 ||for the 6-month period preceding the filing of his Complaint required by 28 U.S.C. 9 || § 1915(a)(1), (2) and S.D. Cal. CivLR 3.2(b).! 10 (3) DIRECTS the Clerk of Court to provide Plaintiff with a Court- approved form 11 ||“Motion and Declaration in Support of Motion to Proceed In Forma Pauperis.” 12 IT IS SO ORDERED. 13 || Dated: December 22, 2022 (GR 14 Hon. Cathy Ann Bencivengo 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 ||' If Plaintiff fails to either prepay the $402 civil filing fee or file a properly supported 5 Motion and Declaration in Support of his Motion to Proceed IFP, together with the trust 6 account statements required by 28 U.S.C. § 1915(a)(2) within 45 days, this case will remain 27 ||dismissed without prejudice based only on Plaintiff's failure to satisfy 28 U.S.C. 28 § 1914(a)’s fee requirements, and will not be counted as a “strike” against him pursuant to 28 U.S.C. § 1915(g).