Cuttino v. Harbor Police Dept.

• Court: District Court, S.D. California
• Decided: April 9, 2025
• Docket: 3:25-cv-00510
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MAURICE CUTTINO, Case No.: 3:25-cv-0510-RSH-LR CDCR #BX5327, 12 ORDER: (1) DENYING MOTION Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS AND 14

15 (2) DISMISSING CIVIL ACTION HARBOR POLICE DEP’T, SCRIPPS WITHOUT PREJUDICE FOR 16 MERCY HOSPITAL, FAILURE TO PAY FILING FEES 17 Defendants. REQUIRED BY 28 U.S.C. § 1914(a)

18 [ECF No. 2] 19 20 21 Maurice Cuttino (“Plaintiff”), a state inmate proceeding pro se, has filed a civil rights 22 complaint pursuant to 42 U.S.C. § 1983. ECF No. 1. In lieu of paying the filing fee required 23 by 28 U.S.C. § 1914(a), Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) 24 pursuant to 28 U.S.C. § 1915(a). ECF No. 2. For the reasons discussed below, the Court 25 denies Plaintiff’s IFP motion and dismisses the action without prejudice. 26 I. IFP MOTION 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $405. See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire 2 fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant 3 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 4 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] 5 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the 6 fee[s] [a]re paid.”). 7 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 8 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 9 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 10 the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 11 1119 (9th Cir. 2005). Using this financial information, the court “assess[es] and when funds 12 exist, collect[s], … an initial partial filing fee,” which is “calculated based on ‘the average 13 monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 14 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 15 payments of 20 percent of the preceding month’s income credited to the prisoner’s 16 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). In short, while 17 prisoners may qualify to proceed IFP without having to pay the full statutory filing upfront, 18 they remain obligated to pay the full amount due in monthly payments. See Bruce v. 19 Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 20 F.3d 844, 847 (9th Cir. 2002). 21 Here, Plaintiff’s IFP Motion is incomplete because he has not submitted a certified 22 copy of his trust account statement for the 6-month period immediately preceding the filing 23 of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Without a certified 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional 26 administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 27 administrative fee does not apply to persons granted leave to proceed IFP. Id. 28 1 || trust account statement, the Court is unable to assess whether any initial partial filing fee 2 ||may be required to initiate the prosecution of Plaintiff's case. See 28 U.S.C. § 1915(b)(1). 3 ||. CONCLUSION AND ORDER 4 Accordingly, the Court: 5 (1) DENIES Plaintiff's Motion to Proceed IFP, ECF No. 2, and DISMISSES the 6 action without prejudice. See 28 U.S.C. §§ 1915(a) & 1914 (a). 7 (2) GRANTS Plaintiff forty-five (45) days from the date of this Order to re-open 8 || his case by either: (a) prepaying the entire $405 civil filing and administrative fee in one 9 || lump-sum; or (b) filing a renewed Motion to Proceed IFP, that includes a prison certificate, 10 || signed by a trust accounting official attesting as to his trust account balances and deposits 11 and/or a certified copy of his Inmate Statement Report for the 6-month period preceding 12 || the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). 13 If Plaintiff chooses not to comply with this Order by either paying the $405 civil 14 || filing fee and administrative fee in full by or submitting a properly supported IFP Motion 15 || within forty-five (45) days, this case will remain dismissed without prejudice and without 16 || further order of the Court based on Plaintiffs failure to comply with 28 U.S.C. § 1914(a). 17 (3) DIRECTS the Clerk of Court to provide Plaintiff with a Court-approved form 18 || “Motion and Declaration in Support of Motion to Proceed In Forma Pauperis.” 19 || IT IS SO ORDERED. ‘ 20 || Dated: April 9, 2025 fekut Lowe 21 Hon.RobertS.Huie s—S 9 United States District Judge 23 24 25 26 27 28 NE... NEIN DCTITD