Mills v. San Diego County Medical Dept

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 MILLS, DAVID RAY, Case No.: 3:23-cv-02248-WQH-KSC Booking No. 23742613, 13 ORDER DENYING MOTION TO Plaintiff, 14 PROCEED IN FORMA PAUPERIS v. AND DISMISSING CIVIL ACTION 15 WITHOUT PREJUDICE PURSUANT SAN DIEGO COUNTY MEDICAL 16 TO 28 U.S.C. § 1914(a) DEP’T; ARJIS 6608; CMO DOCTOR 17 PSYCH, [ECF No. 3] 18 Defendants. 19 20 HAYES, Judge: 21 Plaintiff David Ray Mills (“Plaintiff”), currently at the George Bailey Detention 22 Facility (“GBDF”), and proceeding pro se, filed a civil rights complaint pursuant to 42 23 U.S.C. § 1983. (ECF No. 1.) 24 Plaintiff has not paid the filing fee required by 28 U.S.C. § 1914(a) to commence a 25 civil action; instead, he requests leave to proceed In Forma Pauperis (“IFP”) pursuant to 26 28 U.S.C. § 1915(a) (ECF No. 3). 27 / / / 28 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 $405. 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 6- 14 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 15 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 16 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 17 in the account for the past six months, or (b) the average monthly balance in the account 18 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 19 U.S.C. §§ 1915(b)(1), (4). The institution having custody of the prisoner then collects 20 subsequent payments, assessed at 20% of the preceding month’s income, in any month in 21 which his account exceeds $10, and forwards those payments to the Court until the entire 22 filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 84‒85. 23 While Plaintiff has filed a Motion to Proceed IFP, he has not attached a certified 24 copy of his trust account statement for the 6-month period immediately preceding the filing 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted leave to proceed 28 1 of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) 2 requires prisoners “seeking to bring a civil action ... without prepayment of fees ... [to] 3 submit a certified copy of the trust fund account statement (or institutional equivalent) ... 4 for the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 5 § 1915(a)(2). Without these certified trust account statements, the Court is unable to assess 6 the appropriate amount of the initial filing fee which may be statutorily required to initiate 7 the prosecution of Plaintiff’s case. See 28 U.S.C. § 1915(b)(1). 8 II. CONCLUSION 9 Accordingly, the Court: (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 3) 10 and DISMISSES the action without prejudice for failure to prepay the $405 civil filing fee 11 required by 28 U.S.C. § 1914(a); (2) GRANTS Plaintiff forty-five (45) days from the date 12 this Order is filed in which to re-open his case by either: (a) prepaying the entire $405 civil 13 filing and administrative fee in one lump-sum; or (b) filing a renewed Motion to Proceed 14 IFP, which includes a prison certificate, signed by a trust accounting official attesting as to 15 his trust account balances and deposits, and/or a certified copy of his Inmate Statement 16 Report for the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. 17 § 1915(a)(2) and S.D. Cal. CivLR 3.2(b); and (3) DIRECTS the Clerk of the Court to mail 18 Plaintiff a blank form “Motion and Declaration in Support of Motion to Proceed In Forma 19 Pauperis” for his use and convenience.2 20 / / / 21 22 23 2 Plaintiff is cautioned that if he chooses to re-open the case by either prepaying the full $405 civil filing fee, or by submitting a properly supported Motion to Proceed IFP, his Complaint will be subject to an 24 initial review and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. 25 § 1915(e)(2)(B), regardless of whether he pays the full $405 filing fee at once, or is granted IFP status and is obligated to pay the full filing fee in installments. See Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 26 2000) (en banc) (noting that 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 damages 27 from defendants who are immune); see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking 28 1 If Plaintiff neither pays the $405 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 ||Dated: January 8, 2024 BME: Me Z. Ma 7 Hon. William Q. Hayes 8 United States District Court 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 3:23-ev-02248-WQH-KSC