Ayala v. Armstead

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUAN CARLOS GARCIA AYALA, Case No.: 3:23-cv-00497-RBM-NLS CDCR #AX-4448, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS v. AND DISMISSING CIVIL ACTION 14 WITHOUT PREJUDICE PURSUANT T. ARMSTEAD, Correctional Officer; 15 TO 28 U.S.C. § 1914(a) RIVERA, Correctional Officer;

16 JOHNSON, Correctional Officer; [Doc. 2] ARCINIEGA, Correctional Officer, 17 Defendants. 18 19 20 Plaintiff Juan Carlos Garcia Ayala, currently incarcerated at California Health Care 21 Facility (“CHCF”), in Stockton, California, and proceeding pro se, has filed a civil rights 22 complaint pursuant to 42 U.S.C. § 1983. (See Doc. 1, “Compl.”) Ayala claims Richard J. 23 Donovan Correctional Facility (“RJD”) Officers Armstead and Rivera used excessive force 24 against him on August 8, 2022, while preparing him for post-surgical transport from 25 Alvarado Hospital. (Id. at 8‒10.) Ayala further alleges Defendants Johnson and Arciniega 26 witnessed the unlawful use of force and failed to intervene, and that all Defendants later 27 conspired to file false disciplinary reports after the incident in order to conceal their 28 wrongdoing. (Id. at 9‒12.) 1 Ayala has not paid the filing fee required by 28 U.S.C. § 1914(a) to commence a 2 civil action; instead, he requests leave to proceed in forma pauperis (“IFP”) pursuant to 28 3 U.S.C. § 1915(a) (Doc. 2). 4 I. Motion to Proceed IFP 5 All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $402. See 28 U.S.C. § 1914(a).1 The action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 11 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 12 Samuels, 577 U.S. 82, 83–84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 13 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 14 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 15 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 16 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- 17 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 18 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 19 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 20 in the account for the past six months, or (b) the average monthly balance in the account 21 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 22 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner 23 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 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 any month in which his account exceeds $10, and forwards those payments to the Court 2 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 84‒85. 3 While Ayala has filed a Motion to Proceed IFP, he has not attached a certified copy 4 of his CDCR Inmate Statement Report for the 6-month period immediately preceding the 5 filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 6 1915(a)(2) requires prisoners “seeking to bring a civil action ... without prepayment of fees 7 ... [to] submit a certified copy of the trust fund account statement (or institutional 8 equivalent) ... for the 6-month period immediately preceding the filing of the complaint.” 9 28 U.S.C. § 1915(a)(2) (emphasis added). Without these certified trust account statements, 10 the Court is unable to assess the appropriate amount of the initial filing fee which may be 11 statutorily required to initiate the prosecution of Ayala’s case. See 28 U.S.C. § 1915(b)(1). 12 II. Conclusion and Order 13 Accordingly, the Court: (1) DENIES Plaintiff’s Motion to Proceed IFP (Doc. 2) and 14 DISMISSES the action without prejudice for failure to prepay the $402 civil filing fee 15 required by 28 U.S.C. § 1914(a); (2) GRANTS Plaintiff forty-five (45) days from the date 16 this Order in which to re-open his case by either: (a) prepaying the entire $402 civil filing 17 and administrative fee in one lump-sum; or (b) filing a renewed Motion to Proceed IFP, 18 which includes a prison certificate, signed by a CHCF trust accounting official attesting as 19 to his trust account balances and deposits, and/or a certified copy of his CDCR Inmate 20 Statement Report for the 6-month period preceding the filing of his Complaint pursuant to 21 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b); and (3) DIRECTS the Clerk of the 22 Court to mail Ayala a blank form “Motion and Declaration in Support of Motion to Proceed 23 In Forma Pauperis” for his use and convenience.2 24 25 2 Ayala is cautioned that if he chooses to re-open the case by either prepaying the full $402 26 civil filing fee, or by submitting a properly supported Motion to Proceed IFP, his Complaint 27 will be subject to an initial review and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full $402 28 1 If Ayala neither pays the $402 civil filing fee in full nor sufficiently completes and 2 || files a renewed Motion to Proceed IFP together with a certified copy of his 6-month trust 3 |;account statements within 45 days, his case will remain dismissed without prejudice 4 || pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court. 5 IT IS SO ORDERED. 6 DATE: March 22, 2023 g HON. RUTH sere gf ONTENEGRO UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 || 24 installments. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting 25 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, or seeks 6 damages from defendants who are immune); see also Rhodes v. Robinson, 621 F.3d 1002, 27 || 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all 28 complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.’’). 4 3:23-cv-00497-RBM-NLS