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Padilla v. Kernan

United States District Court, S.D. California

February 14, 2017

MAURO PADILLA, CDCR #F-55326, Plaintiff,
v.
SCOTT KERNAN, et al, Defendants.

          ORDER DENYING PLAINTIFF'S MOTIONS TO PROCEED IN FORMA PAUPERIS, TO COMPEL PRISON OFFICIALS TO PROVIDE TRUST ACCOUNT STATEMENTS, AND FOR PRELIMINARY INJUNCTIVE RELIEF [ECF NOS. 4, 6, 8, 13]

          Hon. Roger T. Benitez United States District Judge.

         MAURO PADILLA (“Plaintiff), currently incarcerated at Centinela State Prison (“CEN”) in Imperial, California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff claims the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) and eight CEN officials denied his right to free exercise of religion in violation of the First, Fourth, Eighth and Fourteenth Amendments, as well as the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) when they refused to provide him Kosher meals between March 2015 and May 2016. (ECF No. 1 at 3-7.) Plaintiff seeks declaratory and injunctive relief as well as nominal, compensatory, and punitive damages. (Id. at 8-9.)

         I. Procedural History

         On October 25, 2016, the Court denied Plaintiffs Motion for Appointment of Counsel and dismissed the case because Plaintiff failed to either prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a), or file a Motion to Proceed In Forma Pauperis (IFP) pursuant to 28 U.S.C. § 1915(a) (ECF No. 3). Plaintiff was granted 45 days leave to re-open the case by doing either. (Id. at 5.)

         Plaintiff has since filed two separate Motions to Proceed IFP (ECF Nos. 4, 13), neither of which complies with 28 U.S.C. § 1915(a)(2)'s requirement that he “submit a certified copy of [his] trust fund account statement (or institutional equivalent) ... for the 6-month period immediately preceding the filing of [his] complaint.” 28 U.S.C. § 1915(a)(2); see also Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). Instead, he has filed a “Motion to Compel, ” in which he “ask[s] the Court to [c]ompel the respondents!!'] agents to forward the ... trust account statement'" required by 28 U.S.C. § 1915(a)(2) to either the Court or to him, as well a Motion for a Preliminary Injunction and a Temporary Restraining Order (“TRO”) (ECF No. 8), which seeks to enjoin Defendants from tampering with his mail, engaging in excessive cell searches, cancelling his Kosher diet without justification, and permitting him “two celebrations per year for ... Messianic Judaism services.” (ECF No. 8 at 1-2.)

         II. Motions to Proceed IFP

         As Plaintiff is aware, 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). The action may proceed despite failure to prepay the entire fee only if Plaintiff 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). Prisoners granted leave to proceed IFP remain obligated to pay the entire fee in “increments” or “installments, ” Bruce v. Samuels, ___U.S. ___, 136 S.Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of outcome. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

         Section 1915(a)(2) requires all persons seeking to proceed without full prepayment of fees to submit an affidavit that includes a statement of all assets possessed and demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In support of this affidavit, section 1915(a)(2) also clearly requires that prisoners, like Plaintiff, “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); 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); 28 U.S.C. § 1915(b)(4). 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 his account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S.Ct. at 629.

         Because neither of Plaintiff s Motions to Proceed IFP comply with 28 U.S.C. § 1915(a)(2), the Court is unable to assess the appropriate amount of the initial filing fee which may be statutorily required to initiate the prosecution of this case. Therefore, both his Motions to Proceed IFP (ECF Nos. 4, 13) must be DENIED. See 28 U.S.C. § 1915(b)(1).

         III. Motion to Compel

         Acknowledging that his IFP Motions are incomplete, Plaintiff also seeks a court order compelling CEN trust account officials, none of whom are named as parties to this action, “to forward the ... trust account statement'" required by 28 U.S.C. § 1915(a)(2) to either the Court or to him. (ECF No. 6 at 1-2.) Plaintiff requests that the Court order CEN trust account officials to cease “hindering” his access to the court by “refusing to [provide] the certified copy of [his] trust account statement.” (ECF No. 17 at 1-2.)

         In support of his Motion, Plaintiff has attached photocopies of two inquiries he first made on September 27, 2016, to the CEN mailroom staff via a CDCR 22 Inmate/Parolee Request for Interview, Item or Service Form (ECF No. 6 at 3), and another on October 14, 2016, to an unidentified library clerk, both requesting information regarding the status of his certified trust account statements. (Id. at 5.) In response to his September 27, 2016 inquiry, a CEN official informed Plaintiff his trust account statement “was included” in legal mail that was delivered to him on September 12, 2016. (Id. at 3.) Plaintiffs CDCR 22 Form dated October 14, 2016, which he filed in this Court on October 27, 2016, indicates only that his renewed request for a 6-month trust account certificate was “forwarded to another staff member. (Id. at 5.)

         First, section 1915(a)(2) clearly provides that “prisoner[s] seeking to bring a civil action ... without prepayment of fees ... in addition to filing the affidavit [required by § 1915(a)(1)] shall submit a certified copy of the trust fund statement” required to support their IFP applications, and that they may do so by “obtaining] [them] from the appropriate official of [the] prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(1), (2). Indeed, California “[i]nmates shall be issued [trust] account statements upon their written request from the Trust Office that reflects [their] current balance, provided 90 days have elapsed since their previous request.” Cal. Dept. Corr. & Rehab. Operations Manual § 54070.4 (2016) (emphasis added); see also Cal. Code Regs. tit. 15, § 3133(c) (2016) (governing procedure for processing “Confidential Mail with Inmate Trust Account Withdrawals”).

         Plaintiff does not allege to have properly complied with these regulations, and “[a]lthough it may take some time for the prison to [respond to Plaintiffs written request], ” “each prison has a procedure” to ensure compliance with 28 U.S.C. § 1915(a)(2). Smith v. Escrow & Cnty Treas., 2008 WL 111074 at *1 (E.D. Cal. Jan. 9, 2008). Plaintiff must follow those procedures; and while he objects that “many inmates are having the same problems, ” (ECF No. 10 at 2), IFP Motions, accompanied by certified copies of inmate trust funds account statements, are filed by California state prisoners in this ...


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