United States District Court, S.D. California
SELVIN O. CARRANZA, CDCR #T-67280, Plaintiff,
MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(A) AND GRANTING
EXTENSION OF TIME TO AMEND (ECF DOC. NO. 5)
GONZALO P. CURIEL, District Judge.
On March 28, 2014, Selvin O. Carranza ("Plaintiff"), currently incarcerated at Kern Valley State Prison ("KVSP") and proceeding pro se, filed a letter with the Clerk of Court containing allegations that unidentified correctional officials at Richard J. Donovan Correctional Facility ("RJD") staged a "gladiator-style fight" between him an another inmate on June 22, 2012, while he was incarcerated there. See ECF Doc. No. 1 at 1.
After the Court construed Plaintiff's letter as an attempt to initiate a civil action pursuant to 42 U.S.C. § 1983 and assigned it Civil Case No. 14cv0773 GPC (BLM), Plaintiff also filed a "Motion for Extension of Time" in which he claimed to be preparing a proper complaint, but asked for a court deadline so that he may "obtain PLU status" and access the law library at KVSP in order to complete it (ECF Doc. No. 3).
On August 18, 2014, the Court dismissed the case based on Plaintiff's failure to either prepay the civil filing fees required by 28 U.S.C. § 1914(a), or to file a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Aug. 18, 2014 Order (ECF Doc. No. 4).
Because Plaintiff indicated he was in the process of preparing a proper Complaint, the Court also granted his Motion for Extension of Time, giving him forty-five (45) days leave in which to either pay the filing fee or move IFP and to file a Complaint that conformed with FED.R.CIV.P. 8. Id. at 4-5. Plaintiff was further provided a blank copy of the Court's form § 1983 Complaint for his use and convenience, and advised that in order to proceed pursuant to 42 U.S.C. § 1983, he must submit a Complaint alleging the violation of a constitutional right by a person acting under color of state law, and naming the parties he wishes to sue in its caption. Id. at 3-4.
On September 22, 2014, Plaintiff partially complied with the Court's Order by filing a Motion to Proceed IFP (ECF Doc. No. 5). He has failed to comply with that portion of the Court's August 18, 2014 Order requiring that he file a proper Complaint however; and the time for doing so has now passed.
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. See 28 U.S.C. § 1914(a). An action may proceed despite the 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 his account exceeds $10, and forward them 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 now submitted a certified copy of his trust account statement pursuant to 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 statement and has determined that Plaintiff has no available funds from which to pay filing fees at this time. 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.").
Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF Doc. No. 5) and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees due 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).
PLAINTIFF'S FAILURE ...