United States District Court, S.D. California
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]
Roger T. Benitez United States District Judge.
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.)
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.)
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.)
Motions to Proceed IFP
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).
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.
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).
Motion to Compel
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.)
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.)
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
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