Wilson v. Candenas

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-278 JLS (LR) Booking No. 23700343 12 ORDER (1) DENYING MOTION Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS, AND (2) 14 DISMISSING WITHOUT CARDENAS; CARDENA’S 15 PREJUDICE CIVIL ACTION SUPERVISOR; CDCR STAFF, 16 Defendants. 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 rights 21 complaint pursuant to 42 U.S.C. § 1983. See Complaint (“Compl.,” ECF No. 1). Plaintiff 22 did 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). ECF 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 pay the entire 5 fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016); 6 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether their 7 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1), (b)(2); Taylor v. Delatoore, 8 281 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 demonstrates 11 an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In 12 support of this affidavit, the PLRA also requires prisoners to submit a “certified copy of 13 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 14 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 15 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 16 Court assesses an initial payment of 20 percent of (a) the average monthly deposits in the 17 account for the past six months, or (b) the average monthly balance in the account for the 18 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 19 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then 20 collects subsequent payments, assessed at 20 percent of the preceding month’s income, in 21 any month in which his account exceeds $10, and forwards those payments to the Court 22 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 84. 23 Although Plaintiff has filed a Motion to Proceed IFP, he has not submitted a certified 24 trust account statement “for the 6-month period immediately preceding the filing of the 25 complaint.” 28 U.S.C. § 1915(a)(2). Because Plaintiff has neither paid the filing fee 26 required by 28 U.S.C. § 1914(a) to commence a civil action, nor filed a properly supported 27 Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), his case cannot yet proceed. See 28 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 1 Conclusion and Order 2 || For this reason, IT IS ORDERED that: 3 (1) Plaintiff's Motion to Proceed IFP (ECF No. 23) is DENIED and the action is 4 ||DISMISSED WITHOUT PREJUDICE for failure to prepay the $402 civil filing fee 5 ||required by 28 U.S.C. §§ 1914(a); 6 (2) Plaintiff is GRANTED forty-five (45) days from the date of this Order in 7 which to re-open his case by either: (a) prepaying the entire $402 civil filing and 8 || administrative fee in one lump-sum; or (b) filing a renewed Motion to Proceed IFP, which 9 includes a prison certificate, signed by a trust accounting official attesting as to his trust 10 || account balances and deposits and/or a certified copy of his Inmate Statement Report 11 || for the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. 12 1915(a)(2); 13 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 14 ||approved form “Motion and Declaration in Support of Motion to Proceed In Forma 15 || Pauperis.” 16 IT IS SO ORDERED. 17 || Dated: February 28, 2023 . tt f te 18 on. Janis L. Sammartino 19 United States District Judge 20 21 22 23 24 25 26 27 28