Uhuru v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KOHEN DIALLO UHURU, Case No.: 20-CV-2056 TWR (BLM) CDCR #P-73824, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY FILING FEE 14 REQUIRED BY 28 U.S.C. § 1914(a) 15 AND/OR FAILING TO MOVE TO RALPH DIAZ; J. CLARK KELSO; PROCEED IN FORMA PAUPERIS 16 CHAPLAIN FABIAN HADJAJ; PURSUANT TO 28 U.S.C. § 1915(a) CHERYLINE MANCUSI; NEIL 17 SCHNEIDER, 18 Defendants. 19 20 Plaintiff Kohen Diallo Uhuru, proceeding pro se and currently housed at the 21 California Health Care Facility located in Stockton, California, filed a civil rights action 22 pursuant to 42 U.S.C. § 1983. (See ECF No. 1 (“Compl.”).) Plaintiff has not prepaid the 23 $400 civil filing fee required by 28 U.S.C. § 1914(a), however, or filed a motion to proceed 24 in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 25 All parties instituting any civil action, suit, or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 28 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 1 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 2 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The Prison Litigation Reform Act’s (“PLRA”) 3 amendments to § 1915, however, require all prisoners who proceed IFP to pay the entire 4 fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. __, 136 S. Ct. 627, 629 5 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether 6 their action is ultimately dismissed. See 28 U.S.C. §§ 1915(b)(1), (2); Taylor v. Delatoore, 7 281 F.3d 844, 847 (9th Cir. 2002). 8 Section 1915(a)(2) requires all persons seeking to proceed IFP to file an affidavit 9 that includes a statement of all assets possessed and demonstrates an inability to pay. See 10 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In support of this affidavit, 11 the PLRA also requires prisoners to submit a “certified copy of the trust fund account 12 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 13 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 14 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an 15 initial payment of 20% of either the average monthly deposits in the account for the past 16 six months or the average monthly balance in the account for the past six months, 17 whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 18 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects 19 subsequent payments, assessed at 20% of the preceding month’s income in any month in 20 which his account exceeds $10, and forwards those payments to the Court until the entire 21 filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 22 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 23 commence a civil action nor filed a properly supported motion to proceed IFP pursuant to 24 28 U.S.C. § 1915(a), his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 25 F.3d at 1051. 26 CONCLUSION 27 In light of the foregoing, the Court: 28 / / / 1 1. DISMISSES WITHOUT PREJUDICE this civil action based on Plaintiff’ s 2 || failure to pay the $400 civil filing and administrative fee or to submit a properly supported 3 motion to proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); 4 2. GRANTS Plaintiff forty-five (45) days’ leave from the date this Order is filed 5 || to either (a) prepay the entire $400 civil filing and administrative fee in full, or (b) complete 6 file a motion to proceed IFP that includes a certified copy of his trust account 7 ||statements for the 6-month period preceding the filing of his Complaint, see 28 U.S.C. 8 1915(a)(2); S.D. Cal. CivLR 3.2(b); and 9 3. DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 10 ||/approved form “Motion and Declaration in Support of Motion to Proceed in Forma 11 || Pauperis.”' 12 If Plaintiff fails to either prepay the $400 civil filing fee or fully complete and submit 13 || the enclosed Motion to Proceed IFP within forty-five (45) days, this action will remain 14 || dismissed without prejudice without further Order of the Court based on his failure to 15 || satisfy 28 U.S.C. § 1914(a)’s fee requirement. 16 IT IS SO ORDERED. 17 18 Dated: October 20, 2020 —— (2 19 Lady \& bore 0 Honorable Todd W. Robinson United States District Court 21 22 23 || ——_____—__- 24 Plaintiff is cautioned that, if he chooses to proceed further by either prepaying the full $400 civil filing 25 || fee or submitting a properly supported motion to proceed IFP, his Complaint will be screened before service and may be dismissed sua sponte pursuant to 28 U.S.C. 8§ 1915A(b) and/or 1915(e)(2)(B), 26 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. 2000) (en 27 banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an 28 in forma pauperis complaint that is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune).