Gutierrez v. Johnson ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 7 JUAN GUTIERREZ, Case No.: 3:20-cv-01836-BAS-WVG 8 CDCR #F-02075, ORDER: 9 Plaintiff, (1) DENYING MOTION TO 10 v. PROCEED IN FORMA PAUPERIS [ECF No. 2]; 11 R.J. JOHNSON; R. RIPPA; D. TAMAYO; A. CHAVEZ; JOHN DOES; AND 12 JANE DOES, (2) DISMISSING ACTION WITHOUT 13 Defendants. PREJUDICE FOR FAILING TO PREPAY FILING FEES 14 15 Plaintiff Juan Gutierrez, while incarcerated at California State Prison – Los Angeles 16 County (“CSP-LAC”) located in Lancaster, California, and proceeding pro se, has filed a 17 Complaint pursuant to the Civil Rights Act, 42 U.S.C. § 1983. (See Compl., ECF No. 1.) 18 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time he 19 submitted his Complaint, but instead filed Motion to Proceed In Forma Pauperis (“IFP”) 20 pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.) 21 I. MOTION TO PROCEED IFP 22 All parties instituting any civil action, suit or proceeding in a district court of the 23 United States, except an application for writ of habeas corpus, must pay a filing fee of $400. 24 See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to prepay the 25 26 1 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 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 2 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 3 prisoner at the time of filing, he may be granted leave to proceed IFP, but he nevertheless 4 remains obligated to pay the entire fee in “increments,” see Williams v. Paramo, 775 F.3d 5 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 6 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). A 7 “prisoner” is defined as “any person” who at the time of filing is “incarcerated or detained 8 in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, 9 violations of criminal law or the terms or conditions of parole, probation, pretrial release, 10 or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 F.3d at 847. 11 Prisoners seeking leave to proceed IFP must also submit a “certified copy of the[ir] 12 trust fund account statement (or institutional equivalent) . . . for the 6-month period 13 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the 14 certified trust account statement, the Court assesses an initial payment of 20% of: (a) the 15 average monthly deposits in the account for the past six months; or (b) the average monthly 16 balance in the account for the past six months, whichever is greater, unless the prisoner has 17 no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. The institution having 18 custody of the prisoner collects subsequent payments, assessed at 20% of the preceding 19 month’s income, in any month in which his account exceeds $10, and forwards them to the 20 Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 21 While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 22 he has not attached a certified copy of his CSP-LAC Inmate Trust Account activity or his 23 Inmate Trust Account Statement Report for the 6-month period immediately preceding the 24 filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 25 1915(a)(2) clearly requires that prisoners “seeking to bring a civil action . . . without 26 prepayment of fees . . . shall submit a certified copy of the trust fund account statement (or 27 institutional equivalent) . . . for the 6-month period immediately preceding the filing of the 28 complaint.” 28 U.S.C. § 1915(a)(2) (emphasis added). Instead, Plaintiff has submitted a 1 ||copy of his trust account statement for early 2019 when he was previously housed at the 2 ||Richard J. Donovan Correctional Facility (“RJD”). (See ECF No. 2 at 3.) 3 Without his current certified trust account statement, the Court is unable to asses: 4 ||the appropriate amount of the initial filing fee which is statutorily required to initiate the 5 || prosecution of this action. See 28 U.S.C. § 1915(b)(1). 6 CONCLUSION AND ORDER 7 For this reason, IT IS ORDERED that: 8 (1) Plaintiff's Motion to Proceed IFP (ECF No. 2) is DENIED and the action i: 9 || DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28 10 || U.S.C. § 1914(a). 1] (2) Plaintiff is GRANTED forty-five (45) days from the date of this Order ir 12 || which to re-open his case by either: (1) paying the entire $400 statutory and administrative 13 || filing fee in one lump-sum; or (2) filing a renewed Motion to Proceed IFP, which includes 14 ||a prison certificate and/or a certified copy of his CSP-LAC Inmate Trust Account 15 ||Statement or his Inmate Trust Account Statement Report for the 6-month period 16 || preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal 17 || CivLR 3.2(b). 18 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 19 || approved form “Motion and Declaration in Support of Motion to Proceed IFP” for his □□□ 20 |}and convenience. But if Plaintiff neither pays the $400 filing fee in full nor sufficiently 21 ||completes and files a renewed Motion to Proceed IFP with a certified copy of his current 22 ||6-month trust account statements within 45 days, this case will remain dismissed without 23 || prejudice pursuant to 28 U.S.C. § 1914(a), and without any further Order of the Court. 24 IT IS SO ORDERED. 25 A ul 26 || DATED: October 2, 2020 Cypilig _| Hohe st 27 United States District Judge 28 -3-