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Donald B. Deshotels, Bop #77974-098 v. Fernando A. Arriola

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 10, 2011

DONALD B. DESHOTELS, BOP #77974-098 PLAINTIFF,
v.
FERNANDO A. ARRIOLA, DEFENDANT.

The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE WITHOUT PREJUDICE [ECF No. 2]

Plaintiff, an inmate currently incarcerated at the Metropolitan Correctional Center, located in San Diego, California, and proceeding pro se, has filed a civil action pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [ECF No. 2].

I.

MOTION TO PROCEED IFP

All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay only if the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). "Under the PLRA, all prisoners who file IFP civil actions must pay the full amount of the filing fee," regardless of whether the action is ultimately dismissed for any reason. See Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002) (citing 28 U.S.C. § 1915(b)(1) & (2)).

In order to comply with the PLRA, prisoners seeking leave to proceed IFP must also submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint...." 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, the institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

In this matter, Plaintiff has submitted a certified copy of his inmate trust account that shows an average monthly deposits of $2550.00 and average daily balance of $528.66. If the Court were to calculate an initial partial filing fee, it would exceed the civil filing fee that is owed to commence this action. Thus, due to Plaintiff's ability to pay the filing fee, Plaintiff's Motion to Proceed IFP is DENIED.

II.

CONCLUSION AND ORDER

For the reasons set forth above, IT IS ORDERED that:

(1) Plaintiff's Motion to Proceed IFP [ECF No. 2] is DENIED.

(2) This action is DISMISSED without prejudice for failure to prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a).

(3) Plaintiff if GRANTED forty five (45) days from the date this Order is Filed to pay the entire $350 filing fee. If Plaintiff fails to pay the $350 filing fee in full within 45 days, this action shall remain closed without further Order of the Court.*fn1


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