Buckelew v. Lovelace
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
The court reviewed a pro se prisoner's motion to proceed in forma pauperis (IFP) in a civil rights action. The court denied the motion and dismissed the action without prejudice for failure to prepay the filing fee, granting the plaintiff 45 days to pay.
| What the court decided | The model |
|---|---|
Denial of Motion to Proceed In Forma Pauperis“Because Plaintiff has failed to demonstrate an inability to pay the $402 civil filing fee in this action, the Court DENIES Plaintiff's Motion to Proceed In Forma Pauperis” | agree with court The court correctly applied the statutory requirement that a prisoner seeking IFP status must demonstrate an inability to pay. The record shows the plaintiff had an average monthly balance of $1,142.61, which exceeds the $402 filing fee. Therefore, the plaintiff failed to meet the burden of proof for IFP status. |
Dismissal of Civil Action Without Prejudice“and DISMISSES this action without prejudice for failure to prepay the filing fee as required by 28 U.S.C. § 1914(a).” | agree with court Dismissal without prejudice is the standard procedural consequence when a plaintiff fails to pay the filing fee and is denied IFP status, provided they are given an opportunity to cure the defect. The court granted 45 days to pay, satisfying due process requirements for this procedural dismissal. |
The order itself: sound — The order correctly identifies the statutory requirements for IFP status and applies them to the specific facts of the plaintiff's trust account. The reasoning is direct and supported by the cited Ninth Circuit precedent regarding the necessity of demonstrating inability to pay.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DION SCOTT BUCKELEW, Case No.: 23-cv-83-MMA (JLB) CDCR #BS-1324, 12 ORDER: DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 28 U.S.C. § 1915(a); 14 AND 15 CAPTAIN LOVELACE, et al., [Doc. No. 2] 16 Defendants. 17 DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR 18 FAILURE TO PREPAY FILING 19 FEES REQUIRED BY 28 U.S.C. § 1914(a) 20 21 22 Plaintiff Dion Scott Buckelew, a state prisoner currently incarcerated at the 23 California State Prison, Los Angeles County, in Lancaster, California, is proceeding pro 24 se in this civil rights action pursuant to 42 U.S.C. § 1983. Doc. No. 1. Plaintiff claims 25 his federal constitutional rights were violated while he was housed at the San Diego 26 County Central Jail. Id. at 6–10. He did not pay the civil filing fee required by 28 U.S.C. 27 § 1914(a) and has instead filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 28 to 28 U.S.C. § 1915(a). Doc. No. 2. 1 All parties instituting any civil action in a district court of the United States, except 2 ||a petition for writ of habeas corpus, must pay a filing fee of $402, and the action may 3 || proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted 4 || pursuant to 28 U.S.C. § 1915(a).! See 28 U.S.C. § 1914(a); Andrews v. Cervantes, 493 5 || F.3d 1047, 1051 (9th Cir. 2007). Plaintiffs who wish to proceed IFP must establish their 6 || inability to pay the civil filing fee by filing an affidavit attesting to their income and 7 ||assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). Section 8 || 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of 9 || the trust fund account statement (or institutional equivalent) for . . . the 6-month period 10 ||}immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 11 || King, 398 F.3d 1113, 1119 (9th Cir. 2005). 12 Plaintiff has submitted a copy of his inmate trust account in support of his IFP 13 Motion which indicates he had $560.81 on account at the time of filing this action and an 14 average monthly balance in the account of $1,142.61 during the 6-month period 15 |/immediately proceeding the filing of his Complaint. Doc. No. 2 at 5. Because Plaintiff 16 || has failed to demonstrate an inability to pay the $402 civil filing fee in this action, the 17 || Court DENIES Plaintiff's Motion to Proceed In Forma Pauperis and DISMISSES this 18 |} action without prejudice for failure to prepay the filing fee as required by 28 U.S.C. 19 ||§ 1914(a). Plaintiff is GRANTED forty-five (45) days leave from the date this Order is 20 || filed to prepay the entire $402 civil filing and administrative fee in full. 21 IT IS SO ORDERED. 22 ||Dated: January 20, 2023 23 BWMiitel MU hipbllr 24 HON. MICHAEL M. ANELLO 25 United States District Judge 26 || 27 tn addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an 28 additional administrative 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)).