Hardy v. Silva

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KRISTIN HARDY, Case No.: 3:24-cv-0899-JAH-MSB CDCR #AA-8633, 12 ORDER: (1) DENYING MOTION Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS AND 14 15 (2) DISMISSING CIVIL ACTION A. SILVA, JOHN DOE, WITHOUT PREJUDICE FOR 16 Defendants. FAILURE TO PAY FILING FEES 17 REQUIRED BY 28 U.S.C. § 1914(a) 18 19 [ECF No. 2] 20 21 Kristin Hardy (“Plaintiff”), a prisoner proceeding pro se, has filed a civil rights 22 complaint pursuant to 42 U.S.C. § 1983. ECF No. 1. In lieu of paying the filing fee required 23 by 28 U.S.C. § 1914(a), Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) 24 pursuant to 28 U.S.C. § 1915(a). ECF No. 2. 25 I. IFP Motion 26 All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 1 $405. See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire 2 fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant 3 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 4 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] 5 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the 6 fee[s] [a]re paid.”). 7 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 8 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 9 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 10 the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 11 1119 (9th Cir. 2005). Using this financial information, the court “assess[es] and when funds 12 exist, collect[s], … an initial partial filing fee,” which is “calculated based on ‘the average 13 monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 14 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 15 payments of 20 percent of the preceding month’s income credited to the prisoner’s 16 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). In short, while 17 prisoners may qualify to proceed IFP without having to pay the full statutory filing upfront, 18 they remain obligated to pay the full amount due in monthly payments. See Bruce v. 19 Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 20 F.3d 844, 847 (9th Cir. 2002). 21 Here, Plaintiff’s Motion to Proceed IFP is incomplete because he has not attached a 22 certified copy of his trust account statment for the 6-month period immediately preceding 23 the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Without these 24 certified trust account statements, the Court is unable to assess whether any initial partial 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 || filing fee may be required to initiate the prosecution of Plaintiff's case. See 28 U.S.C. 2 11§ 1915(b)(1). 3 II. Conclusion and Order 4 || For this reason, IT IS ORDERED that: 5 (1) Plaintiff's Motion to Proceed IFP (ECF No. 2) is DENIED and the action is 6 || DISMISSED without prejudice for failure to prepay the $405 civil filing fee required by 7 U.S.C. §§ 1914(a); 8 (2) Plaintiffis GRANTED forty-five (45) days from the date 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 trust accounting official attesting as to his trust account 12 || balances and deposits and/or a certified copy of his Inmate Statement Report for the 6- 13 || month period preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and 14 Cal. CivLR 3.2(b). 15 If Plaintiff chooses not to comply with this Order by either paying the $405 civil 16 || filing fee and administrative fee in full by or submitting a renewed Motion to Proceed IFP 17 || within forty-five (45) days, this civil action will remain dismissed without prejudice and 18 || without further order of the Court based on Plaintiff's failure to comply with 28 U.S.C. 19 || § 1914 (a). 20 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 21 ||approved form “Motion and Declaration in Support of Motion to Proceed In Forma 22 || Pauperis.” 23 IT IS SO ORDERED. 24 || Dated: May 22, 2024 25 Hon. John A. Houston %6 // United States District Judge 27 28