United States District Court, S.D. California
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. 9]
DANA M. SABRAW, UNITED STATES DISTRICT JUDGE
ORNELAS (“Plaintiff”), currently incarcerated at
Richard J. Donovan Correctional Facility (“RJD”)
in San Diego, California, and proceeding pro se, has filed
this civil rights action pursuant to 42 U.S.C. § 1983.
did not prepay the civil filing fee required by 28 U.S.C.
§ 1914(a) at the time he filed his original Complaint
(ECF No. 1), but on October 2, 2017, he filed an Amended
Complaint (ECF No. 8), together with a Motion to Proceed
In Forma Pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a) (ECF No. 9).
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 has not attached or submitted
certified copy of his CDCR Inmate Statement Report 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).
these certified trust account statements, 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
this reason, IT IS ORDERED that:
(1) Plaintiff's Motion to Proceed IFP (ECF No. 9) is
DENIED and the action is
DISMISSED without prejudice for failure to
prepay the $400 filing fee required by 28 U.S.C. §
(2) 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
renewed 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).
(3) The 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
6-month CDCR Inmate Statement Report within 45 days,
this action will remained ...