Davis v. Edery

• Court: District Court, S.D. California
• Decided: July 27, 2023
• Docket: 3:23-cv-01333
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEXANDRE DAVIS, Case No.: 23cv1333-CAB (JLB)

12 Plaintiff, ORDER DENYING MOTION TO 13 vs. PROCEED IN FORMA PAUPERIS AND DISMISSING CIVIL ACTION 14

ABNER EDERY, et al., 15 Defendants. 16 17 Alexandre Davis (“Plaintiff”), a state prisoner proceeding pro se, has filed a civil 18 rights Complaint accompanied by a motion to proceed in forma pauperis (“IFP”). (ECF 19 Nos. 1-2.) 20 I. Motion to Proceed IFP 21 All parties instituting any civil action, suit or proceeding in a district court of the 22 United States, except an application for writ of habeas corpus, must pay a filing fee of 23 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to prepay the 24 entire fee only if leave to proceed IFP is granted pursuant to 28 U.S.C. § 1915(a). See 25

26 27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial 28 1 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 1915(a)(2) also 2 requires prisoners seeking leave to proceed IFP to submit a “certified copy of the trust fund 3 account statement (or institutional equivalent) for . . . the 6-month period immediately 4 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 5 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses 6 an initial payment of 20% of (a) the average monthly deposits in the account for the past 7 six months, or (b) the average monthly balance in the account for the past six months, 8 whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1) & (4). 9 The institution collects subsequent payments, assessed at 20% of the preceding month’s 10 income, in any month in which the account exceeds $10, and forwards those payments to 11 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). The plaintiff 12 remains obligated to pay the entire fee in monthly installments regardless of whether their 13 action is ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016). 14 Plaintiff’s IFP application does not contain the required trust fund account statement. 15 (See ECF No. 2.) The Court cannot grant the IFP application without the trust fund account 16 statement for the 6-month period immediately preceding the filing of the Complaint. See 17 Andrews, 398 F.3d at 1119 (“prisoners must demonstrate that they are not able to pay the 18 filing fee with an affidavit and submission of their prison trust account records.”), citing 19 28 U.S.C. § 1915(a)(1)&(2). Plaintiff’s motion to proceed IFP is DENIED and this action 20 is DISMISSED without prejudice based on Plaintiff’s failure to pay the civil filing and 21 administrative fee or to submit a properly supported motion to proceed IFP pursuant to 28 22 U.S.C. §§ 1914(a) & 1915(a). 23 II. Conclusion and Order 24 Accordingly, the Court: 25 (1) DENIES Plaintiff’s motion to proceed IFP without prejudice (ECF No. 2). 26 (2) DISMISSES this civil action without prejudice based on Plaintiff’s failure to 27 pay the civil filing and administrative fee or to submit a properly supported motion to 28 proceed IFP pursuant to 28 U.S.C. §§ 1914(a) & 1915(a). 1 (3) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 2 || to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 3 || file a properly supported motion to proceed IFP which includes a certified copy of their 4 || prison trust account statement for the 6-month period preceding the filing of his Complaint. 5 || See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). If Plaintiff fails to either pay the $405 6 || civil filing fee or submit a properly supported motion to proceed IFP within 45 days, this 7 || action will remain dismissed without prejudice based solely on his failure to satisfy 28 8 |/U.S.C. § 1914(a)’s fee requirement and without further Order of the Court. 9 IT IS SO ORDERED 10 Dated: July 27, 2023 (6 11 Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3