United States District Court, S.D. California
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND
DISMISSING ACTION WITHOUT PREJUDICE (ECF NOS. 1, 2)
Janis L. Sammartino, United States District Judg.
Berihu H. Fkadu, currently housed at Atascadero State Prison
located in Atascadero, California, and proceeding pro se, has
filed a civil rights complaint pursuant to 42 U.S.C. §
1983. (Compl, ECF No. 1.) Plaintiff has not prepaid the civil
filing fee required 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). (IFP Mot., ECF
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 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 he is granted leave to proceed IFP, he
nevertheless remains obligated to pay the entire fee in
“increments, ” Williams v. Paramo, 775
F.3d 1182, 1185 (9th Cir. 2015), 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). A prisoner is defined as “any
person” who at the time of filing is
“incarcerated or detained in any facility who is
accused of, convicted of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms or
conditions of parole, probation, pretrial release, or
diversionary program.” 28 U.S.C. § 1915(h);
Taylor, 281 F.3d at 847.
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
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);
Taylor, 281 F.3d at 850. The institution having
custody of the prisoner then 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).
Plaintiff has filed an IFP Motion pursuant to 28 U.S.C.
§ 1915(a), he has not attached a certified copy of his
trust account statements, or an institutional equivalent, for
the 6-month period immediately preceding the filing of his
Complaint. See 28 U.S.C. § 1915(a)(2); Civ.
L.R. 3.2. Section 1915(a)(2) clearly requires 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).
Plaintiffs trust account statement, the Court is 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).
these reasons, IT IS ORDERED that:
Plaintiffs Motion to Proceed IFP (ECF No. 2) is DENIED and
the action is DISMISSED WITHOUT PREJUDICE for failure to
prepay the $400 filing fee required by 28 U.S.C. §
Plaintiff is GRANTED forty-five (45) days from the
date of this Order in which to re-open his case by either:
(1) paying the entire $400 statutory and administrative
filing fee, or (2) filing a new IFP Motion, 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 Civil Local Rule 3.2(b);
Clerk of the Court is DIRECTED to provide Plaintiff with a
Court-approved form “Motion and Declaration in Support
of Motion to Proceed IFP” in this matter. If Plaintiff
neither pays the $400 filing fee in full nor sufficiently
completes and files the attached IFP Motion, together with a
certified copy of his trust account statement within 45 days,
this action will ...