Valdez v. Doe 1 ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 RICARDO VALDEZ, Case No.: 3:20-cv-0737-WQH-RBM CDCR #E-98488, 11 ORDER DENYING MOTION TO Plaintiff, 12 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 28 U.S.C. § 1915(a) 13 AND DISMISSING CIVIL ACTION DOE #1, Officer; 14 WITHOUT PREJUDICE FOR CALIFORNIA DEPARTMENT OF FAILURE TO PREPAY FILING 15 CORRECTIONS AND FEES REQUIRED BY REHABILITATION, 16 28 U.S.C. § 1914(a) Defendants. 17 [ECF No. 2] 18 19 Plaintiff Ricardo Valdez, while incarcerated at Richard J. Donovan Correctional 20 Facility (“RJD”) in San Diego, California, and proceeding pro se,1 filed a Complaint 21 22 1 The Court notes that another RJD prisoner, Raul Arellano, has submitted Valdez’s Complaint and seeks 23 the appointment of counsel on Ricardo Valdez’s behalf. (See Compl. at 5.) While Valdez may appear on his own behalf, Arellano may not represent him in this case. See Johns v. Cty. of San Diego, 114 F.3d 874, 24 877 (9th Cir. 1997) (“[A] non-lawyer ‘has no authority to appear as an attorney for others than himself.’” 25 (quoting C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987))). “Although a non- attorney may appear in propria persona in his own behalf, that privilege is personal to him.” Id. (citations 26 omitted); see also Fed. R. Civ. P. 11(a) (“Every pleading, written motion, and other paper must be signed . . . by a party personally if the party is unrepresented.”). Therefore, Plaintiff Valdez is cautioned that any 27 future documents submitted by Arellano may be rejected. See S.D. Cal. CivLR 5.1(h) (“Except as provided in the federal rules, or by leave of court, no document will be filed in any case by any person not a party 28 1 pursuant to the Civil Rights Act, 42 U.S.C. § 1983, on April 16, 2020. (See Compl., ECF 2 No. 1.) Valdez alleges that an unidentified RJD Officer and the California Department of 3 Corrections and Rehabilitation (“CDCR”) unlawfully retaliated against him and 4 destroyed his personal property after he was “feeling suicidal” and requested a mental 5 health crisis placement on June 20, 2018. (Id. at 1, 3-4.) 6 Valdez has not paid the civil filing fee required by 28 U.S.C. § 1914(a), but instead 7 has filed Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 8 (See ECF No. 2.) 9 I. Motion to Proceed IFP 10 All parties instituting any civil action, suit or proceeding in a district court of the 11 United States, except an application for writ of habeas corpus, must pay a filing fee of 12 $400. See 28 U.S.C. § 1914(a).2 An action may proceed despite a plaintiff’s failure to 13 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 14 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 15 plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he 16 nevertheless remains obligated to pay the entire fee in “increments,” see Williams v. 17 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 18 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 19 Cir. 2002). A “prisoner” is defined as “any person” who at the time of filing is 20 “incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or 21 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 22 probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 23 F.3d at 847. 24 25 26 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. 27 June. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 28 1 Prisoners seeking leave to proceed IFP must also submit a “certified copy of the[ir] 2 trust fund account statement (or institutional equivalent) . . . for the 6-month period 3 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the 4 certified trust account statement, the Court assesses an initial payment of 20% of (a) the 5 average monthly deposits in the account for the past six months, or (b) the average 6 monthly balance in the account for the past six months, whichever is greater, unless the 7 prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. After, 8 the institution having custody of the prisoner collects subsequent payments, assessed at 9 20% of the preceding month’s income, in any month in which his account exceeds $10, 10 and forwards them to the Court until the entire filing fee is paid. See 28 U.S.C. 11 § 1915(b)(2). 12 While Valdez has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 13 he has not attached a certified copy of his CDCR Inmate Trust Account Statement Report 14 for the 6-month period immediately preceding the filing of his Complaint. See 28 U.S.C. 15 § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) clearly requires that prisoners 16 “seeking to bring a civil action . . . without prepayment of fees . . . shall submit a certified 17 copy of the trust fund account statement (or institutional equivalent) . . . for the 6-month 18 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) 19 (emphasis added). 20 Without his certified trust account statements, the Court is unable to assess the 21 appropriate amount of the initial filing fee which may be statutorily required to initiate 22 the prosecution of this action. See 28 U.S.C. § 1915(b)(1). 23 II. Conclusion and Order 24 For this reason, IT IS ORDERED that: 25 (1) Valdez’s Motion to Proceed IFP (ECF No. 2) is DENIED and the action is 26 DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28 27 U.S.C. § 1914(a). 28 /// 1 (2) Valdez is GRANTED forty-five (45) days from the date of this Order in 2 || which to re-open his case by either: (1) paying the entire $400 statutory and 3 || administrative filing fee in one lump-sum, or (2) filing a renewed Motion to Proceed IFP, 4 || which includes a prison certificate and/or a certified copy of his CDCR Inmate Trust 5 Account Statement Report for the 6-month period preceding the filing of his Complaint 6 || pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). 7 (3) The Clerk of the Court is DIRECTED to provide Valdez with a Court- 8 || approved form “Motion and Declaration in Support of Motion to Proceed IFP” for his use 9 || and convenience. But if Valdez neither pays the $400 filing fee in full, nor sufficiently 10 completes and files a renewed Motion to Proceed IFP, together with a certified copy of 11 || his 6-month trust account statements within 45 days, this case will remain dismissed 12 || without prejudice pursuant to 28 U.S.C. § 1914(a), and without any further Order of the 13 || Court.’ 14 IT IS SO ORDERED. 15 || Dated: July 2, 2020 BME: ie 2 A a 16 Hon. William Q. Hayes 7 United States District Court 18 19 20 21 22 23 3 Valdez is cautioned that if he chooses to proceed further by either prepaying the full $400 civil filing fee, or submitting a properly supported renewed Motion to Proceed IFP, his Complaint will be reviewed 25 || before service and may be dismissed pursuant to 28 U.S.C. § 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- 26 |} 27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an IFP 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”).