United States District Court, S.D. California
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND
DISMISSING ACTION WITHOUT PREJUDICE
Janis L. Sammartino United States District Judge.
Nehemiah Lanarr McIntosh, a state inmate currently housed at
the California Institution for Men located in Chino,
California, and proceeding pro se, has filed a civil rights
complaint (“Compl.”) 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
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); 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 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); 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). Instead, Plaintiff
has filed a trust account statement dated for the time period
from November 1, 2006 to May 29, 2007. (See ECF No.
11, at 3.)
Plaintiffs current trust account statement reflecting the
6-month period immediately preceding the filing of this
action, 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).
Conclusion and Order
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 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 ...