Dorado v. Crumb ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL DORADO, Case No.: 3:20-cv-1936-JAH-LL Booking #19778496, 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 CATHERINE CRUMB; JOHN FAILING TO PREPAY FILING 16 SULLIVAN; JESSICA COTTO; CITY FEES REQUIRED BY 17 OF SAN DIEGO; COUNTY OF SAN 28 U.S.C. § 1914(a) DIEGO, 18 Defendants. [ECF No. 2] 19 20 21 Plaintiff Daniel Dorado, while incarcerated at the George Bailey Detention Facility 22 (“GBDF”) located in San Diego, California, and proceeding pro se, has filed a Complaint 23 pursuant to the Civil Rights Act, 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff 24 later filed a First Amended Complaint (“FAC”). (See FAC, ECF No. 7.) 25 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the 26 time he submitted his Complaint, but instead filed Motion to Proceed In Forma Pauperis 27 (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 3.) 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 12 “incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or 13 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 14 probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 15 F.3d at 847. 16 Prisoners seeking leave to proceed IFP must also submit a “certified copy of the[ir] 17 trust fund account statement (or institutional equivalent) . . . for the 6-month period 18 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the 19 certified trust account statement, the Court assesses an initial payment of 20% of (a) the 20 average monthly deposits in the account for the past six months, or (b) the average 21 monthly balance in the account for the past six months, whichever is greater, unless the 22 prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. After, 23 the institution having custody of the prisoner collects subsequent payments, assessed at 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 20% of the preceding month’s income, in any month in which his account exceeds $10, 2 and forwards them to the Court until the entire filing fee is paid. See 28 U.S.C. 3 § 1915(b)(2). 4 While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 5 he has not attached a certified copy of his GBDF Inmate Trust Account activity or his 6 Inmate Trust Account Statement Report for the 6-month period immediately preceding 7 the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 8 1915(a)(2) clearly requires that prisoners “seeking to bring a civil action . . . without 9 prepayment of fees . . . shall submit a certified copy of the trust fund account statement 10 (or institutional equivalent) . . . for the 6-month period immediately preceding the filing 11 of the complaint.” 28 U.S.C. § 1915(a)(2) (emphasis added). 12 Without his certified trust account statements, the Court is unable to assess the 13 appropriate amount of the initial filing fee which is statutorily required to initiate the 14 prosecution of this action. See 28 U.S.C. § 1915(b)(1). 15 II. Conclusion and Order 16 For this reason, IT IS ORDERED that: 17 (1) Plaintiff’s Motion to Proceed IFP (ECF No. 2) is DENIED and the action is 18 DISMISSED without prejudice for failure to prepay the $400 filing fee required by 28 19 U.S.C. § 1914(a). 20 (2) Plaintiff is GRANTED forty-five (45) days from the date of this Order in 21 which to re-open his case by either: (1) paying the entire $400 statutory and 22 administrative filing fee in one lump-sum, or (2) filing a renewed Motion to Proceed IFP, 23 which includes a prison certificate and/or a certified copy of his GBDF Inmate Trust 24 Account Statement or his Inmate Trust Account Statement Report for the 6-month period 25 preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. 26 CivLR 3.2(b). 27 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 28 approved form “Motion and Declaration in Support of Motion to Proceed IFP” for his use 1 convenience. But if Plaintiff neither pays the $400 filing fee in full, nor sufficiently 2 ||completes and files a renewed Motion to Proceed IFP, together with a certified copy of 3 || his 6-month trust account statements within 45 days, this case will remain dismissed 4 || without prejudice pursuant to 28 U.S.C. § 1914(a), and without any further Order of the 5 || Court. 6 IT IS SO ORDERED. 7 8 9 || Dated: December 1, 2020 VU 10 Hgn. John A. Houston ll Jnited States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4