Tyler v. Delgado

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CLAUDIE TYLER, Case No.: 3:23-cv-02110-RBM-MSB CDCR #K19763, 11 ORDER DENYING MOTION TO Plaintiff, 12 PROCEED IN FORMA PAUPERIS vs. AND DISMISSING CIVIL ACTION 13 WITHOUT PREJUDICE FOR 14 FAILURE TO PREPAY DELGADO, C/O, et al., FILING FEES 15 Defendants. 16 [Doc. 2] 17 18 Plaintiff Claudie Tyler, who is proceeding pro se and is currently housed at Richard 19 J. Donovan Correctional Facility (“RJD”) located in San Diego, California, has filed a civil 20 rights action pursuant to 42 U.S.C. § 1983 claiming the Defendants have violated his 21 Eighth Amendment rights. (See Doc. 1 (“Compl.”).) He has not prepaid the civil filing 22 fee required by 28 U.S.C. § 1914(a), but has filed a Motion to Proceed In Forma Pauperis 23 (“IFP”). 24 I. Motion to Proceed IFP 25 All parties instituting any civil action, suit or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 28 1 $405. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee, however, if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 4 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Section 1915(a)(2) requires all 5 persons seeking to proceed without full prepayment of fees to file an affidavit that includes 6 a statement of all assets possessed and demonstrates an inability to pay. See Escobedo v. 7 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In support of this affidavit, the Prison 8 Litigation Reform Act (“PLRA”) also requires prisoners to submit a “certified copy of the 9 trust fund account statement (or institutional equivalent) for . . . the 6-month period 10 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 11 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 12 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 13 for the past six months, or (b) the average monthly balance in the account for the past six 14 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 15 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects 16 subsequent payments, assessed at 20% of the preceding month’s income, in any month in 17 which his account exceeds $10, and forwards those payments to the Court until the entire 18 filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 84. 19 While Plaintiff has filed a Motion to Proceed IFP, he has not attached a certified 20 copy of his CDCR Inmate Statement Report for the 6-month period immediately preceding 21 the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Without the 22 certified trust account statement, the Court cannot assess the appropriate amount of the 23 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 27 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does 28 not apply to persons granted leave to proceed IFP. Id. 1 initial filing fee which may be statutorily required to initiate the prosecution of this case, 2 and his case may not yet proceed. See 28 U.S.C. § 1915(b)(1). 3 II. Conclusion and Order 4 Accordingly, the Court: 5 (1) DENIES Plaintiff’s Motion to Proceed IFP (Doc. 2) and DISMISSES the 6 action without prejudice for failure to prepay the $405 civil filing fee required by 28 U.S.C. 7 § 1914(a); 8 (2) GRANTS Plaintiff forty-five (45) days from the date of this Order in which 9 to re-open his case by either: (a) prepaying the entire $405 civil filing and administrative 10 fee in one lump-sum; or (b) filing a renewed Motion to Proceed IFP, which includes a 11 prison certificate, signed by a RJD trust accounting official attesting as to his trust account 12 balances and deposits, and/or a certified copy of his CDCR Inmate Statement Report for 13 the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. 14 § 1915(a)(2) and S.D. Cal. CivLR 3.2(b); and 15 (3) DIRECTS the Clerk of the Court to mail Plaintiff a court-approved form 16 “Motion and Declaration in Support of Motion to Proceed In Forma Pauperis” for his use 17 and convenience.2 If Plaintiff neither pays the $405 civil filing fee in full nor sufficiently 18 completes and files a renewed Motion to Proceed IFP together with a certified copy of his 19 20 21 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 22 Complaint 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 23 full $405 filing fee at once, or is granted IFP status and is obligated to pay the full filing 24 fee in 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 25 dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, 26 or seeks damages 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. 27 § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity 28 or officer or employee of a governmental entity.”). 1 ||6-month trust account statements within 45 days, his case will remain dismissed without 2 || prejudice pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court. 3 IT IS SO ORDERED. 4 Dated: February 20, 2024 Fe Le ; ? L ° HON. RUTH BERMUDEZ MONTENEGRO 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VAD. NALIN DDT □□□□□