Hernandez v. County of San Diego ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIAS JESUS HERNANDEZ, Case No.: 3:20-cv-0066-JAH-BLM Booking #19747048, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 28 U.S.C. § 1915(a) 14 AND DISMISSING CIVIL ACTION 15 WITHOUT PREJUDICE FOR COUNTY OF SAN DIEGO; WILLIAM FAILING TO PREPAY FILING 16 D. GORE; CAPTAIN BUCHANAN, FEES REQUIRED BY 17 Defendants. 28 U.S.C. § 1914(a) 18 [ECF No. 2] 19 20 Plaintiff Elias Jesus Hernandez, while incarcerated at the George Bailey Detention 21 Facility (“GBDF”) located in San Diego, California, and proceeding pro se, has filed a 22 Complaint pursuant to the Civil Rights Act, 42 U.S.C. § 1983. (See Compl., ECF No. 1.) 23 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the 24 time he submitted his Complaint, but instead filed Motion to Proceed In Forma Pauperis 25 (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.) 26 I. Motion to Proceed IFP 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). An 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 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 4 plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he 5 nevertheless remains obligated to pay the entire fee in “increments,” see Williams v. 6 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 7 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 8 Cir. 2002). A “prisoner” is defined as “any person” who at the time of filing is 9 “incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or 10 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 11 probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 12 F.3d at 847. 13 Prisoners seeking leave to proceed IFP must also submit a “certified copy of the[ir] 14 trust fund account statement (or institutional equivalent) . . . for the 6-month period 15 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the 16 certified trust account statement, the Court assesses an initial payment of 20% of (a) the 17 average monthly deposits in the account for the past six months, or (b) the average 18 monthly balance in the account for the past six months, whichever is greater, unless the 19 prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. After, 20 the institution having custody of the prisoner collects subsequent payments, assessed at 21 20% of the preceding month’s income, in any month in which his account exceeds $10, 22 and forwards them to the Court until the entire filing fee is paid. See 28 U.S.C. 23 § 1915(b)(2). 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 While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 2 he has not attached a certified copy of his GBDF Inmate Trust Account activity or his 3 Inmate Trust Account Statement Report for the 6-month period immediately preceding 4 the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 5 1915(a)(2) clearly requires that prisoners “seeking to bring a civil action . . . without 6 prepayment of fees . . . shall submit a certified copy of the trust fund account statement 7 (or institutional equivalent) . . . for the 6-month period immediately preceding the filing 8 of the complaint.” 28 U.S.C. § 1915(a)(2) (emphasis added). 9 Without his certified trust account statements, the Court is unable to assess the 10 appropriate amount of the initial filing fee which is statutorily required to initiate the 11 prosecution of this action. See 28 U.S.C. § 1915(b)(1). 12 II. Conclusion and Order 13 For this reason, IT IS ORDERED that: 14 (1) Plaintiff’s Motion to Proceed IFP (ECF No. 2) is DENIED and the action is 15 DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28 16 U.S.C. § 1914(a). 17 (2) Plaintiff is GRANTED forty-five (45) days from the date of this Order in 18 which to re-open his case by either: (1) paying the entire $400 statutory and 19 administrative filing fee in one lump-sum, or (2) filing a renewed Motion to Proceed IFP, 20 which includes a prison certificate and/or a certified copy of his GBDF Inmate Trust 21 Account Statement or his Inmate Trust Account Statement Report for the 6-month period 22 preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. 23 CivLR 3.2(b). 24 // 25 // 26 // 27 // 28 // 1 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 2 || approved form “Motion and Declaration in Support of Motion to Proceed IFP” for his use 3 convenience. But if Plaintiff neither pays the $400 filing fee in full, nor sufficiently 4 ||completes and files a renewed Motion to Proceed IFP, together with a certified copy of 5 || his 6-month trust account statements within 45 days, this case will remain dismissed 6 || without prejudice pursuant to 28 U.S.C. § 1914(a), and without any further Order of the 7 || Court. 8 IT IS SO ORDERED. 9 10 11 || Dated: January 22, 2020 VU 12 lpn. John A. Houston 13 Jnited States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4