Free Order on Motion for Leave to Proceed in forma pauperis - District Court of California - California

Case 3:08-cv-01456-H-LSP

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

BRYAN DAVIS, SR., CDCR #P-62597, Plaintiff, vs. CITY OF SAN DIEGO; ROGER T. BENITEZ, Judge; LOUISA S. PORTER, U.S. Magistrate Judge; JEFF CROCKER, Deputy Clerk; MOLLY C. DWYER, Acting Clerk, Defendants.

Civil No.

08-1456 H (CAB)

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. § 1915(a) [Doc. No. 2]

Bryan Davis, Sr., ("Plaintiff"), a state prisoner currently incarcerated at High Desert State Prison in Susanville, California, and proceeding pro se, has submitted a civil rights Complaint pursuant to 28 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated 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) [Doc. No. 2]. I. MOTION TO PROCEED IFP 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 $350. See 28
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U.S.C. § 1914(a). An action may proceed despite a party's failure to pay only if the party is granted leave to proceed in forma pauperis ("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 however, remain obligated to pay the entire fee in installments, regardless of whether the action is ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2). Prisoners seeking leave to proceed IFP must also submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner 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 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), (4); see also Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002). Thereafter, 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 the prisoner's 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). While Plaintiff has filed a Motion to Proceed IFP in this matter pursuant to 28 U.S.C. § 1915(a), he has not attached a certified copy of his prison trust account statement for the 6month 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 mandates 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). Without Plaintiff's trust account statement, the Court is simply unable to assess the appropriate amount of the filing fee required to initiate this action. See 28 U.S.C. § 1915(b)(1). Therefore, Plaintiff's Motion to Proceed IFP must be DENIED. ///
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II. CONCLUSION AND ORDER For the reasons set forth above, IT IS ORDERED that: (1) (2) Plaintiff's Motion to Proceed IFP [Doc. No. 2] is DENIED. This action is DISMISSED without prejudice for failure to prepay the $350 filing

fee mandated by 28 U.S.C. § 1914(a), and for failure to successfully move to proceed IFP pursuant to 28 U.S.C. § 1915(a). (3) Plaintiff if GRANTED forty five (45) days from the date this Order is Filed to

either: (1) pay the entire $350 filing fee, or (2) file 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). IT IS FURTHER ORDERED that the Clerk of the Court shall 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 $350 filing fee in full nor sufficiently completes and files the attached Motion to Proceed IFP, together with a certified copy of his prison trust account statement within 45 days, this action shall remained closed without further Order of the Court.1

DATED: August 14, 2008 _______________________________________ HON. MARILYN L. HUFF United States District Judge

Plaintiff is cautioned that if he chooses to proceed further with this action by submitting a renewed motion to proceed IFP, his Complaint, which appears patently frivolous, will be subject to mandatory screening and sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2). See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim). Moreover, such a dismissal may be counted as a "strike" against Plaintiff if he seeks to proceed IFP in any future civil action in federal court while he is incarcerated. See Andrews, 493 F.3d at 1052 (under the Prison Litigation Reform Act, "[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP status under the three strikes rule[.]"). In fact, the Court takes judicial notice of its own docket which shows that Plaintiff has already accumulated one clear strike in this district. See Davis v. Garcia, et al., S.D. Cal. Civil Case No. 07-0140-BEN (POR) (Aug. 20, 2007 Order dismissing First Amended Complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) [Doc. No. 12].)
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