United States District Court, S.D. California
LEAONARD WALTERS, aka JAMES C. WALTERS, CDCR #BC-6589, Plaintiff,
SHERIFF; KNOWN DOCTOR; KNOWN MEDICAL STAFF; KNOWN SHERIFF DEPUTY, Defendants.
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(a) AND DISMISSING CIVIL
ACTION WITHOUT PREJUDICE FOR FAILING TO PREPAY FILING FEES
REQUIRED BY 28 U.S.C. § 1914(a) [ECF No. 2]
Gonzalo P. Curiel United States District Judge
Walters, also known as James C. Walters,
(“Plaintiff”), currently housed at the California
Institution for Men, and proceeding pro se, has filed a civil
rights complaint pursuant to 42 U.S.C. § 1983 (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) (ECF No. 2).
Motion to Proceed IFP
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 a 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 at the time of filing, he may be
granted leave to proceed IFP, but he nevertheless remains
obligated to pay the entire fee in “increments, ”
see 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.
order to comply with the PLRA, prisoners seeking leave to
proceed IFP must also submit a “certified copy of
the[ir] 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). 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).
Plaintiff has filed a Motion to Proceed IFP pursuant to 28
U.S.C. § 1915(a), he filed only a prison certificate
from the San Diego Central Jail where he is no longer housed
and was not housed at the time of filing. Plaintiff has been
housed at the California Institution for Men
(“CIM”) since March 30, 2017 and
Plaintiff's Complaint was deemed “filed” as
of April 21, 2017. (See Compl. at 9.) Plaintiff must
provide a certified copy of his inmate trust account from the
institution where he is currently housed. See 28
U.S.C. § 1915(a)(2); S.D. Cal. CivLR 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). If Plaintiff has not been in custody for a full
6-months prior to filing, he must submit copies of his trust
account statements for the entire period during which he was
first detained, up to the time of filing, and/or a prison
certificate signed by CIM officials attesting as to his
recent trust account activities and current balance.
Plaintiff's trust account statement, or CIM's
functional equivalent, 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).
Conclusion and Order
these reasons, IT IS ORDERED that:
Plaintiff's 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 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).
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 Motion to Proceed IFP,
together with a certified copy of his trust account
statement within 45 days, this action will remained
dismissed without prejudice pursuant to 28 U.S.C. §
1914(a), and without further Order of the