United States District Court, S.D. California
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (ECF Doc. No. 3)
AND (3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF SUMMONS AND COMPLAINT PURSUANT TO FED.R.CIV.P. 12(c)(3) and 4(c)(3) AND 28 U.S.C. § 1915(d)
JOHN A. HOUSTON, District Judge.
Georgi Rushanyan ("Plaintiff"), a federal prisoner currently incarcerated at McRae Correctional Institution in McRae, Georgia, has submitted a "Complaint for Damages" against the United States seeking the return of property seized pursuant to his arrest in U.S.A. v. Rushanyan, S.D. Cal. Criminal Case No. 11-cr-01392-DMS-1. See Compl. at 1-2; citing 18 U.S.C. § 983(e)(1) (governing civil forfeiture proceedings and providing that "[a]ny person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person's interest in the property.").
Essentially, Plaintiff has filed a motion for return of property that would normally be governed by FED.R.CRIM.P. 41(g); however, the Clerk has opened a civil action in response to Plaintiff's Complaint pursuant to Ninth Circuit law which requires a motion for return of property to be construed as a civil action seeking equitable relief, governed by the Federal Rules of Civil Procedure, whenever the underlying criminal case is no longer pending. See United States v. Ritchie, 342 F.3d 903, 906 (9th Cir. 2003) ("If a Rule 41[g] motion is filed when no criminal proceeding is pending, the motion is treated as a civil complaint seeking equitable relief."); United States v. Ibrahim, 522 F.3d 1003, 1007 (9th Cir. 2008) (finding that when no criminal case is pending, a Rule 41(g) motion is governed by the Federal Rules of Civil Procedure.").
Because 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, see 28 U.S.C. § 1914(a),  and Plaintiff failed to pay the fee at the time of filing, the Court dismissed his action without prejudice on September 27, 2013, but granted him leave to either pay the fee or file a Motion to Proceed In Forma Pauperis (IFP) pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2).
Plaintiff has elected to file a Motion to Proceed IFP (ECF Doc. No. 3), to which the Court now turns.
MOTION TO PROCEED IFP
A civil action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a prisoner and is granted leave to proceed IFP, he nevertheless remains obligated to pay the entire fee in installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a prisoner seeking leave to proceed IFP must also submit a "certified copy of the trust fund account statement (or institutional equivalent) for... the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess 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); 28 U.S.C. § 1915(b)(4). 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 support of his IFP Motion, Plaintiff has submitted a prison certificate issued by an accounting clerk at McRae Correctional Institution as required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff's trust account certificate verifying his account history and available balances. Plaintiff's certificate indicates he has average monthly deposits of $200.43, an average monthly balance of $78.01, and an available balance of $13.86 in his trust account at the time of filing. Based on this information, the Court GRANTS Plaintiff's
Plaintiff's pending Motion to Proceed IFP (ECF Doc. No. 5). Motion to Proceed IFP (ECF Doc. No. 3) and assesses an initial partial filing fee of $40.08 pursuant to 28 U.S.C. § 1915(b)(1).
However, the Warden of McRrae Correctional Institution, or his designee, shall collect this initial fee only if sufficient funds in Plaintiff's account are available at the time this Order is executed pursuant to the directions set forth below. See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay... due to the lack of funds available to him when payment is ordered."). The remaining balance of the $350 total owed in this case shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
SUA SPONTE SCREENING PER 28 U.S.C. § ...