Scott v. Yoo ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BILLIE D. SCOTT, Case No.: 21-cv-1319-MMA (KSC) CDCR #AY-8804 12 ORDER DENYING MOTION TO 13 PROCEED IN FORMA PAUPERIS Plaintiff, AND DISMISSING COMPLAINT 14 vs. WITHOUT PREJUDICE 15 [Doc. No. 2] 16 FRANK YOO, M.D. et al., GRANTING MOTION FOR 17 Defendants. EXTENSION OF TIME 18 [Doc. No. 3] 19 20 21 Billie D. Scott (“Plaintiff”), a state inmate currently incarcerated California Health 22 Care Facility, located in Stockton, California and proceeding pro se, has filed a civil 23 rights complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1 (“Compl.”). Plaintiff did 24 not pay the filing fee required by 28 U.S.C. § 1914(a) to commence a civil action when 25 he filed his Complaint; instead, he filed a motion to proceed in forma pauperis (“IFP”) 26 pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. Plaintiff has also filed a motion for 27 extension of time. See Doc. No. 3. 28 1 I. MOTION TO PROCEED IN FORMA PAUPERIS 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 $402. See 28 U.S.C. § 1914(a). The 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 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s 8 (“PLRA”) amendments to § 1915 require all prisoners who proceed IFP to pay the entire 9 fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016); 10 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether their 11 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 12 F.3d 844, 847 (9th Cir. 2002). 13 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 14 of fees to file an affidavit that includes a statement of all assets possessed and 15 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 16 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a 17 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 18 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 20 trust account statement, the Court assesses an initial payment of 20% of: (a) the average 21 monthly deposits in the account for the past six months; or (b) the average monthly 22 balance in the account for the past six months, whichever is greater, unless the prisoner 23 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 24 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 25 preceding month’s income, in any month in which his account exceeds $10, and forwards 26 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 27 § 1915(b)(2); Bruce, 577 U.S. at 84. 28 Although Plaintiff has filed a motion to proceed IFP, he did not include a certified 1 trust account statement. See Doc. No. 2. Because Plaintiff has neither paid the filing fee 2 required by 28 U.S.C. § 1914(a) to commence a civil action, nor filed a properly supported 3 motion to proceed IFP pursuant to 28 U.S.C. § 1915(a), his case cannot yet proceed. See 4 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 5 II. MOTION FOR EXTENSION OF TIME 6 Along with his motion to proceed IFP, Plaintiff has also filed a motion for 7 extension of time. See Doc. No. 3. He seeks additional time to submit a copy of his trust 8 account statement. See id. For the reasons discussed above, Plaintiff’s IFP motion is 9 denied. To the extent Plaintiff seeks additional time to satisfy the filing fee requirement, 10 the Court GRANTS Plaintiff an additional 60 days from the date of this Order to file a 11 new motion to proceed in forma pauperis that includes a copy of the required certified 12 trust account statement. 13 III. CONCLUSION 14 For the foregoing reasons, the Court DENIES Plaintiff’s motion to proceed IFP 15 pursuant to 28 U.S.C. § 1914(a) and/or 28 U.S.C. § 1915(a) and DISMISSES this civil 16 action without prejudice based on Plaintiff’s failure to pay the $402 civil filing and 17 administrative fee or to submit a motion to proceed IFP pursuant to 28 U.S.C. §§ 1914(a) 18 and 1915(a). The Court further GRANTS Plaintiff’s motion for extension of time and 19 grants Plaintiff sixty (60) days leave from the date this Order is filed to either: (a) prepay 20 the entire $402 civil filing and administrative fee in full; or (b) complete and file a new 21 motion to proceed IFP and include a certified copy of his CDCR trust account statements 22 for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. 23 § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 24 Finally, the Court DIRECTS the Clerk of Court to provide Plaintiff with the 25 Court’s approved form “Motion and Declaration in Support of Motion to Proceed In 26 Forma Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or fully 27 complete and submit the enclosed motion to proceed IFP within 60 days, this action will 28 remain dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s 1 || fee requirement and without further Order of the Court. 2 IT IS SO ORDERED. 3 ||Dated: August 24, 2021 4 Baie Ta - /higltr 5 HON. MICHAEL M. ANELLO 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 21-cv-1319-MMA (KSC)