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Williams v. State

United States District Court, S.D. California

September 15, 2014

JOSHUA DAVID WILLIAMS, Inmate Booking No. 14732898. Plaintiff,
v.
STATE OF CALIFORNIA, et al., Defendants.

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. § 1915(a)

GONZALO P. CURIEL, District Judge.

Joshua David Williams ("Plaintiff"), currently incarcerated at San Diego Central Jail located in San Diego, California, and proceeding pro se, has filed a civil rights complaint ("Compl.") pursuant to 42 U.S.C. § 1983 (Doc. No. 1). On July 31, 2013, Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2). The Court denied Plaintiff's Motion because he failed to file a certified copy of his prison trust account statement as required by 28 U.S.C. § 1915(a)(2). (ECF No. 3.) The Court permitted Plaintiff to file a renewed Motion and informed him he must comply with the Court's Order requiring the trust account statement. (ECF No. 3 at 3.)

Plaintiff has now filed a second Motion to Proceed IFP but once again, he has failed to submit a certified copy of his inmate trust account statement. (ECF No. 4.)

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.[1] 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 [Prison Litigation Reform Act], all prisoners who file IFP civil actions must pay the full amount of the filing fee, " regardless of whether their case is ultimately dismissed. 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 collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forwards them 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 pursuant to 28 U.S.C. § 1915(a), he has not attached a certified copy of his prison trust account statements or the institutional certificate of funds or its equivalent, for the 6-month period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2. 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 initial filing fee which is statutorily required to initiate the prosecution of this action. See 28 U.S.C. § 1915(b)(1).

II.

CONCLUSION AND ORDER

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

(1) Plaintiff's Motion to Proceed IFP (Doc. No. 4) is DENIED and the action is DISMISSED without prejudice for failure to prepay the $400 filing fee mandated by 28 U.S.C. § 1914(a).

(2) Plaintiff is GRANTED an additional forty-five (45) days from the date of this Order to either: (1) pay the entire $400 statutory and administrative filing fee, or (2) file a new Motion to Proceed IFP, which includes a certified copy of his trust account statement for the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b).

The Clerk of the Court is further DIRECTED to provide Plaintiff with the Court's approved form "Motion and Declaration in Support of Motion to Proceed IFP" for Plaintiff's use if he wishes to proceed further. If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and files the attached Motion to Proceed IFP, together with a certified copy of his trust account statement within 45 days, this civil action will remained dismissed without prejudice pursuant to 28 U.S.C. § 1915(a) and without further action by the Court.


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