Keavney v. County of San Diego ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MICHAEL RICHARD KEAVNEY, Case No.: 3:19-cv-01947-AJB-BGS Booking #17104761, 11 ORDER DISMISSING CIVIL Plaintiffs, 12 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY 13 FILING FEE REQUIRED COUNTY OF SAN DIEGO, et al., 14 BY 28 U.S.C. § 1914(a) AND/OR Defendants. FAILING TO MOVE TO PROCEED 15 IN FORMA PAUPERIS 16 PURSUANT TO 28 U.S.C. § 1915(a) 17 18 Plaintiff Michael Richard Keavney, while incarcerated at the San Diego Central 19 Jail (“SDCJ”) and proceeding pro se, has filed a civil right complaint pursuant to 42 20 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff alleges the County of San Diego and 21 two Tri‒City Hospital doctors violated his constitutional rights by ignoring his pleas for 22 medical attention in December 2018. Id. at 1‒5. He seeks $1 million in compensatory and 23 punitive damages. Id. at 7. He has not prepaid the $400 civil filing fee required by 28 24 U.S.C. § 1914(a), however, and has not filed a Motion to Proceed In Forma Pauperis 25 (“IFP”) pursuant to 28 U.S.C. § 1915(a). 26 I. Failure to Pay Filing Fee or Request IFP Status 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s 5 (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the 6 entire fee in “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 7 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and 8 regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 9 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 10 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 11 of fees to file an affidavit that includes a statement of all assets possessed and 12 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 13 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a 14 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 15 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 17 trust account statement, the Court assesses an initial payment of 20% of (a) the average 18 monthly deposits in the account for the past six months, or (b) the average monthly 19 balance in the account for the past six months, whichever is greater, unless the prisoner 20 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 21 custody of the prisoner then collects subsequent payments, assessed at 20% of the 22 preceding month’s income, in any month in which his account exceeds $10, and forwards 23 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 24 Bruce, 136 S. Ct. at 629. 25 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 26 commence a civil action, nor filed a properly supported Motion to Proceed IFP pursuant 27 to 28 U.S.C. § 1915(a), his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 28 493 F.3d at 1051. 1 Conclusion and Order 2 Accordingly, the Court: 3 (1) DISMISSES this civil action without prejudice based on Plaintiff’s failure 4 pay the $400 civil filing and administrative fee or to submit a Motion to Proceed JFP 5 || pursuant to 28 U.S.C. §§ 1914(a) and 1915(a). 6 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 7 || filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) 8 ||complete and file a Motion to Proceed JFP which includes a certified copy of his SDCJ 9 || trust account statements for the 6-month period preceding the filing of his Complaint. See 10 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 1] (3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 12 || approved form “Motion and Declaration in Support of Motion to Proceed In Forma 13 || Pauperis.”' If Plaintiff fails to either prepay the $400 civil filing fee or fully complete 14 || and submit the enclosed Motion to Proceed JFP within 45 days, this action will remain 15 || dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 16 requirement and without further Order of the Court. 17 IT IS SO ORDERED. 18 ||Dated: December 5, 2019 © ¢ 19 Hon, Anthony J.Battaglia 20 United States District Judge 21 22 |} 23 ||! Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full $400 civil filing fee, or submitting a properly supported Motion to Proceed /FP, his Complaint will be screened before service 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 $400 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) 28 (discussing similar screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.”).