Pulu v. Costa
- Proceeding
- district
- Area
- civil
- Panel
- Jinsook Ohta (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 because the plaintiff's trust account balance demonstrated an ability to pay the filing fee.
| What the court decided | The model |
|---|---|
Motion to Proceed In Forma Pauperis (IFP) Denied“Because Plaintiff has failed to demonstrate an inability to pay the $402 civil filing fee in this action, Plaintiff’s Motion to Proceed IFP is DENIED” | agree with court The court correctly applied the Prison Litigation Reform Act (PLRA) requirement that a prisoner must submit a certified copy of their trust fund account statement for the six months preceding the filing. The order recites that the plaintiff had a balance of $10,497.70 and an average monthly balance of $10,461.77. Under 28 U.S.C. § 1915(a)(2), a prisoner with a trust account balance exceeding the filing fee is not indigent for purposes of proceeding IFP. The decision follows directly from the statutory text and the facts recited in the order. |
Civil Action Dismissed Without Prejudice“and this action is DISMISSED 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. The court granted 45 days to prepay, which is consistent with local rules and federal practice for allowing a cure of the deficiency. |
The order itself: sound — The order is procedurally and substantively sound. It correctly identifies the applicable statutory requirements under the PLRA and 28 U.S.C. § 1915(a). The court relies on binding Ninth Circuit precedent to support its interpretation of the trust account requirement. The factual finding that the plaintiff had over $10,000 in his trust account is sufficient to deny IFP status, as the balance far exceeds the $402 filing fee. The dismissal without prejudice and the grant of time to prepay are appropriate procedural measures.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MOSES PULU, Case No.: 23cv1582-JO (BGS) CDCR #H-86891, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 28 U.S.C. § 1915(a) 14 AND DISMISSING CIVIL ACTION 15 WITHOUT PREJUDICE FOR A. COSTA, et al., FAILING TO PREPAY FILING 16 Defendants. FEES REQUIRED BY 28 U.S.C. 17 § 1914(a) 18 19 Plaintiff Moses Pulu is a state prisoner incarcerated at the R.J. Donovan Correctional 20 Facility in San Diego, California. Proceeding pro se he filed a civil rights action pursuant 21 to 42 U.S.C. § 1983 (ECF No. 1) and a motion to proceed in forma pauperis (“IFP”). (ECF 22 No. 2). For the reasons set forth below, the Court denies Plaintiff’s motion to proceed IFP. 23 I. Motion to Proceed IFP 24 A party may institute a civil action without prepaying the required filing fee if the 25 Court grants leave to proceed IFP based on indigency. 28 U.S.C. § 1915(a); Andrews v. 26 Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Plaintiffs who wish to proceed IFP must 27 establish their inability to pay by filing an affidavit regarding their income and assets. See 28 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). For prisoners to establish an 1 inability to pay, the Prison Litigation Reform Act requires submission of “a certified copy 2 of the [prisoner’s] trust fund account statement (or institutional equivalent) for . . . the 6- 3 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 4 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). 5 Plaintiff’s submissions fail to establish that he is unable to pay the filing fee in this 6 case. The copy of his inmate trust account in support of his IFP Motion indicates he had 7 $10,497.70 on account at the time of filing this action and an average monthly balance in 8 the account of $10,461.77 during the 6-month period immediately preceding the filing of 9 his Complaint. (ECF No. 3 at 1–3). Because Plaintiff has failed to demonstrate an inability 10 to pay the $402 civil filing fee in this action, Plaintiff’s Motion to Proceed IFP is DENIED 11 and this action is DISMISSED without prejudice for failure to prepay the filing fee as 12 required by 28 U.S.C. § 1914(a). Plaintiff is GRANTED forty-five (45) days leave from 13 the date this Order is filed to prepay the entire $402 civil filing and administrative fee in 14 full. 15 16 IT IS SO ORDERED. 17 18 Dated: September 28, 2023 19 Hon. Jinsook Ohta United States District Judge 20 21 22 23 24 25 26 27 28