Carroll v. San Diego County Jail Sheriff ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABONILICO LAMAR CARROLL, Case No.: 3:19-cv-02073-AJB-NLS Booking #19749688, 12 ORDER DENYING MOTION TO Plaintiffs, 13 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 28 U.S.C. § 1915(a) 14 AND DISMISSING CIVIL ACTION SAN DIEGO COUNTY JAIL SHERIFF, 15 WITHOUT PREJUDICE FOR et al., FAILING TO PREPAY FILING 16 Defendants. FEES REQUIRED BY 17 28 U.S.C. § 1914(a) 18 [ECF No. 2] 19 20 Plaintiff Abonilico Lamar Carroll, while detained at the San Diego Central Jail 21 (“SDCJ”) and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. 22 § 1983. See Compl., ECF No. 1. Plaintiff seeks $17 million in general and punitive 23 damages based on claims of having been unlawfully strip searched at the SDCJ on 24 September 19, 2019. Id. at 1‒2, 4‒6, 8. 25 He has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a), but 26 instead has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 27 § 1915(a) (ECF No. 2). 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 $400. See 28 U.S.C. § 1914(a).1 An 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 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 7 plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he 8 nevertheless remains obligated to pay the entire fee in “increments,” see Williams v. 9 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 10 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 11 Cir. 2002). A “prisoner” is defined as “any person” who at the time of filing is “incarcerated 12 or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated 13 delinquent for, violations of criminal law or the terms or conditions of parole, probation, 14 pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 F.3d at 847. 15 Prisoners seeking leave to proceed IFP must also submit a “certified copy of the[ir] 16 trust fund account statement (or institutional equivalent) . . . for the 6-month period 17 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the 18 certified trust account statement, the Court assesses an initial payment of 20% of (a) the 19 average monthly deposits in the account for the past six months, or (b) the average monthly 20 balance in the account for the past six months, whichever is greater, unless the prisoner has 21 no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. After, the institution 22 having custody of the prisoner collects subsequent payments, assessed at 20% of the 23 preceding month’s income, in any month in which his account exceeds $10, and forwards 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 26 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 27 Misc. Fee Schedule, § 14 (eff. June. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 28 1 them to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 2 While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 3 he has not attached a certified copy of his SDCJ Inmate Trust Account Activity Report for 4 the 6-month period immediately preceding the filing of his Complaint. See 28 U.S.C. 5 § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) clearly requires that prisoners 6 “seeking to bring a civil action . . . without prepayment of fees . . . shall submit a certified 7 copy of the trust fund account statement (or institutional equivalent) . . . for the 6-month 8 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) 9 (emphasis added). 10 Without his certified trust account statements, the Court is unable to assess the 11 appropriate amount of the initial filing fee which is statutorily required to initiate the 12 prosecution of Plaintiff’s case. See 28 U.S.C. § 1915(b)(1). 13 II. Conclusion and Order 14 For this reason, IT IS ORDERED that: 15 (1) Plaintiff’s Motion to Proceed IFP (ECF No. 2) is DENIED and the action is 16 DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28 17 U.S.C. § 1914(a). 18 (2) Plaintiff is GRANTED forty-five (45) days from the date of this Order in 19 which to re-open his case by either: (1) paying the entire $400 statutory and administrative 20 filing fee in one lump-sum, or (2) filing a renewed Motion to Proceed IFP, which includes 21 a prison certificate and/or a certified copy of his SDCJ Inmate Trust Account Statement 22 for the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. 23 § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). 24 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 25 approved form “Motion and Declaration in Support of Motion to Proceed IFP” for his use 26 and convenience. But if Plaintiff neither pays the $400 filing fee in full, nor sufficiently 27 completes and files a renewed Motion to Proceed IFP, together with a certified copy of his 28 6-month trust account statements within 45 days, this case will remain dismissed without 1 || prejudice pursuant to 28 U.S.C. § 1914(a), and without any further Order of the Court.' 2 IT IS SO ORDERED. 3 4 ||Dated: December 9, 2019 © 5 Hon. Anthony J.@Battaglia 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ' Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full 22 $400 civil filing fee or submitting a properly supported renewed Motion to Proceed IFP, 23 || his Complaint will be screened before service and may be dismissed pursuant to 28 U.S.C. 54 § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays or is obligated to pay filing fees. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 25 (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte 5 dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, 6 or seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621 27 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. 2g § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.”).