Ballesteros v. Bothelo

• Court: District Court, D. Hawaii
• Decided: July 11, 2023
• Docket: 1:23-cv-00282
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII DAVERSON BALLESTEROS, CIVIL NO. 23-00282 DKW-KJM #A6092723, ORDER DENYING APPLICATION Plaintiff, TO PROCEED IN FORMA PAUPERIS BY A PRISONER, ECF v. NO. 2

RUSSEL BOTHELO,

Defendant.

Before the Court is an Application to Proceed In Forma Pauperis by a Prisoner filed by pro se Plaintiff Daverson Ballesteros.1 ECF No. 2. Ballesteros’ IFP Application is DENIED as incomplete. When bringing an action, a prisoner must either pay the $350.00 filing fee and a $52.00 administrative fee in a lump sum or, if granted the privilege of proceeding in forma pauperis, pay the $350.00 filing fee incrementally as set forth in 28 U.S.C. § 1915(b)(1). An application to proceed in forma pauperis requires an (1) affidavit of indigence and (2) a certified copy of the inmate’s trust account

1Ballesteros is currently incarcerated at the Oahu Community Correctional Center. See VINE, https://vinelink.vineapps.com/search/HI/Person (select “ID Number”; enter “A6092723”; and select “Search”) (last visited July 11, 2023). statement for the six months preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2); Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir. 2000). A prisoner

must submit trust account statements from each institution where he was confined during the relevant six-month period. See 28 U.S.C. § 1915(a)(2). To assist prisoners in meeting these statutory requirements, the Court

requires use of a form application—that is, the “Application to Proceed In Forma Pauperis by a Prisoner.” See United States District Court District of Hawaii, https://www.hid.uscourts.gov/files/prose/Application%20To%20Proceed%20In%2 0Forma%20Pauperis%20By%20a%20Prisoner%20(IFP)%20and%20Instructions.p

df (last visited July 11, 2023). This form includes: (1) an affidavit of indigence (for completion by the prisoner); (2) a financial certificate and consent to collection of fees (for completion by the prisoner); and (3) a certificate (for

completion by the warden or other appropriate officer of the institution in which the prisoner is confined). See id. The form also reminds the prison official to attach a copy of the prisoner’s trust account balance statements for the preceding six months. See id.

If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an initial partial filing fee of twenty percent of either the average monthly deposits or the average monthly balance in the prisoner’s account, whichever is

greater. 28 U.S.C. § 1915(b)(1); Bruce v. Samuels, 577 U.S. 82, 84 (2016). An initial partial filing fee will only be collected when funds exist. See 28 U.S.C. § 1915(b)(1). The balance of the $350.00 filing fee will be collected in monthly

payments of twenty percent of the preceding month’s income credited to the prisoner’s account, each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 84. These payments continue until the filing fee

is paid in full. See 28 U.S.C. § 1915(b)(2). The initial partial filing fee and the subsequent monthly installment payments are assessed on a per-case basis. Bruce, 577 U.S. at 84. Thus, filing fees associated with multiple actions are recouped simultaneously, not sequentially. See id.

Ballesteros’ IFP Application is incomplete. Specifically, the IFP Application does not include: (1) a financial certificate and consent to collection of fees (for completion by Plaintiff); (2) a certificate (for completion by the warden or

other appropriate officer of the institution in which the prisoner is confined); and (3) account statements for the preceding six months showing all deposits and withdrawals to Ballesteros’ account during that period. See ECF No. 2. Ballesteros is DIRECTED to promptly submit a complete IFP Application.

Failure to do so, or to pay the filing fee in full, by August 8, 2023 will result in automatic dismissal of this suit without prejudice and without further notice. See Fed. R. Civ. P. 41(b); see also Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995). The Court will take no action on any pending or future filings in this action until Ballesteros addresses the deficiencies set forth in this Order. CONCLUSION (1) Ballesteros’ Application to Proceed In Forma Pauperis by a Prisoner is DENIED without prejudice as incomplete. (2) Ballesteros is DIRECTED to pay the filing fee in full, or to submit a complete IFP Application by August 8, 2023. (3) The Clerk is DIRECTED to send Ballesteros an Application to Proceed In Forma Pauperis by a Prisoner to facilitate compliance with this Order. IT IS SO ORDERED. DATED: July 11, 2023 at Honolulu, Hawaii.

/s/ Derrick K. Watson dot Derrick K. Watson RS Chief United States District Judge

Daverson Ballesteros v. Russel Bothelo; Civil No. 23-00282 DKW-KJM; ORDER. DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER