United States District Court, S.D. California
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(A) [ECF NO. 3]
Gonzala P. Curiel, Judge
Joaquin Frazier, currently incarcerated Caddo Correctional
Center in Shreveport, Louisiana, and proceeding pro se, filed
a civil right complaint pursuant to 42 U.S.C. § 1983 on
May 13, 2019. (See Compl., ECF No. 1.) Frazier
alleges the San Diego Police Department, Sheriff's
Office, and San Diego State Courts violated his
constitutional rights by falsely arresting him in San Diego
in 2014, and by physically assaulting him while he was held
in pretrial custody in 2015. (Id. at 4-7.) He seeks
$350 million in compensatory and punitive damages.
(Id. at 8-12.)
21, 2019, the Court dismissed Frazier's case because he
failed to prepay the $400 civil filing fee required by 28
U.S.C. § 1914(a), and did not file a Motion to Proceed
In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915(a) (ECF No. 2). However, the Court granted
Frazier 45 days leave to fix these deficiencies, directed the
Clerk of the Court to provide him with its approved form
Motion to Proceed IFP, and cautioned that he must
“include a certified copy of his prison trust account
statements for the 6-month period preceding the filing of his
Complaint, ” as required by 28 U.S.C. § 1915(a)(2)
and S.D. Cal. CivLR 3.2(b). (See ECF No. 2 at 3-4.)
5, 2019, Frazier filed a Motion to Proceed IFP (ECF No. 3).
Motion to Proceed IFP
Frazier now knows, 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 the 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 by “installments,
” Bruce v. Samuels, 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).
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 requires that prisoners,
like Frazier, “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); see also
Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005).
the certified trust account statement, the Court must assess
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), (b)(4). The
institution having custody of the prisoner must collect
subsequent payments, assessed at 20% of the preceding
month's income, in any month in which his account exceeds
$10, and forward 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.
Frazier has now filed a Motion to Proceed IFP, it fails to
comply with 28 U.S.C. § 1915(a)(2) because it does not
include a certified copy of his trust fund account
statements, or an “institutional equivalent”
issued by Caddo Correctional Center officials, attesting as
to his trust account activity and balances for the 6-month
period preceding the filing of this action. See 28
U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2.b. Without this
accounting, the Court remains unable to fulfill its statutory
duty to assess the appropriate amount of initial filing fee
which may be required to further prosecute Frazier's
case. See 28 U.S.C. § 1915(b)(1).
Conclusion and Order
Accordingly, IT IS ORDERED that:
Plaintiff's Motion to Proceed IFP (ECF No. 3) is
DENIED and the action is again
DISMISSED without prejudice for failure to
prepay the $400 filing fee required by 28 U.S.C. §
Plaintiff is GRANTED an additional
opportunity to correct his IFP deficiencies and an additional
forty-five (45) days leave from the date of this Order in
which to re-open his case by either: (a) paying the entire
$400 statutory and administrative filing fee,
or (b) filing a renewed Motion to
Proceed IFP, which must include a certified copy of his
prison trust account statements for the 6-month ...