Delena v. Lara

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DAVID I. DELENA, Jr., Case No.: 3:23-cv-00345-JAH-WVG CDCR #AL-8117, 11 ORDER DENYING MOTION TO Plaintiff, 12 PROCEED IN FORMA PAUPERIS v. AND DISMISSING CIVIL ACTION 13 WITHOUT PREJUDICE FOR GEORGE LARA, Vocational and 14 FAILURE TO PREPAY Welding Instructor; K. MACK, FILING FEES 15 Supervisor of Vocations, 16 Defendants. [ECF No. 2] 17 18 19 Plaintiff David I. Delena, Jr., currently incarcerated at California Institution for Men 20 (“CIM”), in Chino, California, and proceeding pro se, has filed a civil rights complaint 21 pursuant to 42 U.S.C. § 1983. (See ECF No. 1, “Compl.”) Delena claims a vocational 22 supervisor and welding program instructor at Centinela State Prison (“CEN”) subjected 23 him to unsafe working conditions in violation of the Eighth Amendment. Specifically, 24 Delena alleges Defendants Lara and Mack failed to provide him with adequate safety 25 clothing during a December 7, 2021 welding assignment, and he suffered second degree 26 burns to his left leg as a result. (Id. at 1‒3.) Delena has not paid the filing fee required by 27 28 U.S.C. § 1914(a) to commence a civil action; instead, he requests leave to proceed in 28 forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 1 I. Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $402. See 28 U.S.C. § 1914(a).1 The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 8 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 9 Samuels, 577 U.S. 82, 83–84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 10 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 11 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP 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 balance 18 in the account for the past six months, whichever is greater, unless the prisoner has no 19 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 20 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 21 month’s income, in any month in which his account exceeds $10, and forwards those 22 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 23 577 U.S. at 84‒85. 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 While Delena has filed a Motion to Proceed IFP, he has not attached a certified copy 2 of his CDCR Inmate Statement Report for the 6-month period immediately preceding the 3 filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Without these 4 certified trust account statements, the Court cannot assess the appropriate amount of the 5 initial filing fee which may be statutorily required to initiate the prosecution of this case. 6 See 28 U.S.C. § 1915(b)(1). 7 II. Conclusion and Order 8 Accordingly, the Court: 9 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) and DISMISSES the 10 action without prejudice for failure to prepay the $402 civil filing fee required by 28 U.S.C. 11 § 1914(a); 12 (2) GRANTS Plaintiff forty-five (45) days from the date this Order in which to 13 re-open his case by either: (a) prepaying the entire $402 civil filing and administrative fee 14 in one lump-sum; or (b) filing a renewed Motion to Proceed IFP, which includes a prison 15 certificate, signed by a CIM trust accounting official attesting as to his trust account 16 balances and deposits, and/or a certified copy of his CDCR Inmate Statement Report for 17 the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. 18 § 1915(a)(2) and S.D. Cal. CivLR 3.2(b); and 19 (3) DIRECTS the Clerk of the Court to mail Delena a court-approved form 20 “Motion and Declaration in Support of Motion to Proceed In Forma Pauperis” for his use 21 and convenience.2 If Delena neither pays the $402 civil filing fee in full nor sufficiently 22 23 2 Delena is cautioned that if he chooses to re-open the case by either prepaying the full $402 24 civil filing fee, or by submitting a properly supported Motion to Proceed IFP, his Complaint 25 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 26 filing fee at once, or is granted IFP status and is obligated to pay the full filing fee in 27 installments. See Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an 28 1 |}completes and files a renewed Motion to Proceed IFP together with a certified copy of his 2 ||6-month trust account statements within 45 days, his case will remain dismissed without 3 || prejudice pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court. 4 IT IS SO ORDERED. 5 || Dated: March 9, 2023 6 Hog. John A. Houston 7 Umited States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 || 26 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.”’).