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Asberry v. Cate

United States District Court, Ninth Circuit

January 2, 2014

TONY ASBERRY CDCR #P-63853, Plaintiff,
v.
MATTHEW CATE, et aI., Defendants.

ORDER: 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) (ECF Doc. No.2); 2) DENYING MOTION FOR INJUNCTIVE RELIEF PURSUANT TO FED.R.CIV.P. 65 (ECF Doc. No.3); AND 3) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILING TO PAY FILING FEES REQUIRED BY 28 U.S.C. § 1914(a)

WILLIAM Q. HAYES, District Judge.

Plaintiff, an inmate currently incarcerated at Richard J. Donovan Correctional Facility (RJD) in San Diego, California, and proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff alleges prison officials at RJD have provided him with inadequate medical treatment in violation of the Eighth Amendment since he was transferred there in March 2012. See Compl. (ECF Doc. No.1) at 4-14. Plaintiff further alleges that he "believes... RJD officials are [acting in] retaliation" for a previously-filed civil action and "602s." Id. at 14. Plaintiff seeks general and punitive damages as well as injunctive relief in the form of a court order directing Defendants to return his wheelchair. Id. at 17.

Plaintiff has not prepaid the $400 filing fee mandated by 28 U.S.C. § 1914(a);[1] instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No.2), accompanied by a Motion for Injunctive Relief (ECF Doc. No.3).

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 $400. 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 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 [Prison Litigation Reform Act], 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).

While Plaintiff has filed a Motion to Proceed IFP in this matter pursuant to 28 U.S.C. § 1915(a), he has not attached a certified copy of his prison trust account statement for the 6-month period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIvLR3.2. Section 1915(a)(2) clearly mandates that prisoners "seeking to bring a civil action...without prepayment of fees... shall submit a certified copy of the trust fund account statement (or institutional equivalent)... for the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2) (emphasis added).

Without Plaintiff's trust account statement, the Court is simply unable to assess the appropriate amount of the filing fee which is statutorily required to initiate the prosecution of this action. See 28 U.S.C. § 1915(b)(1). Therefore, Plaintiffs Motion to Proceed IFP (ECF Doc. No.2) must be DENIED.

II.

MOTION FOR INJUNCTIVE RELIEF

In addition to the injunctive relief requested in his Complaint seeking the return of his wheelchair, see Compl. (ECF Doc. No.1) at 17, Plaintiff has also submitted a Motion for Injunctive Relief in which he ...


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