Wilson v. CDCR

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TEDDY LEROY WILSON, Jr, Case No.: 23-cv-344-MMA (BLM) Booking No. 23700343 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA vs. PAUPERIS AND DISMISSING 14 CIVIL ACTION WITHOUT CDCR, Employees, Workers, Staff, 15 PREJUDICE Defendants. 16 [Doc. No. 2] 17 18 19 Teddy LeRoy Wilson, Jr. (“Plaintiff” or “Wilson”), currently housed at the Vista 20 Detention Facility located in Vista, California, and proceeding pro se, has filed a civil 21 rights complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1 (“Compl.”). Plaintiff did 22 not pay the filing fee required by 28 U.S.C. § 1914(a) to commence a civil action; 23 instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 24 § 1915(a). Doc. No. 2. 25 I. MOTION TO PROCEED IN FORMA PAUPERIS 26 All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 $402. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 1 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 2 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 3 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s 4 (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the 5 entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 6 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 7 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 8 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 10 of fees to file an affidavit that includes a statement of all assets possessed and 11 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 12 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 20 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 23 § 1915(b)(2); Bruce, 577 U.S. at 84. 24 Although Plaintiff has filed a Motion to Proceed IFP, he has not submitted a 25 certified trust account statement “for the 6-month period immediately preceding the filing 26 of the complaint.” 28 U.S.C. § 1915(a)(2). Because Plaintiff has neither paid the filing 27 fee required by 28 U.S.C. § 1914(a) to commence a civil action, nor filed a properly 28 supported Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), his case cannot yet 1 proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 2 II. CONCLUSION AND ORDER 3 For this reason, IT IS ORDERED that: 4 (1) Plaintiff's Motion to Proceed IFP (Doc. No. 2) is DENIED, and the action is 5 || DISMISSED without prejudice for failure to prepay the $402 civil filing fee required by 6 U.S.C. §§ 1914(a); 7 (2) Plaintiffis GRANTED forty-five (45) days from the date this Order in 8 || which to re-open his case by either: (a) prepaying the entire $402 civil filing and 9 ||administrative fee in one lump-sum; or (b) filing a renewed Motion to Proceed IFP, 10 || which includes a prison certificate, signed by a trust accounting official attesting as to 11 || his trust account balances and deposits and/or a certified copy of his Inmate Statement 12 || Report for the 6-month period preceding the filing of his Complaint pursuant to 28 13 |}U.S.C. § 1915(a)(2); and 14 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 15 || approved form “Motion and Declaration in Support of Motion to Proceed In Forma 16 || Pauperis.” 17 IT ISSO ORDERED. 18 || Dated: February 24, 2023 19 BMiihuh UM -{ hiktr 20 HON. MICHAEL M. ANELLO 1 United States District Judge 22 23 24 25 26 27 28