Dean v. Appelate Defenders

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID ANTHONY DEAN, Case No.: 24-cv-2173-MMA (KSC) CDCR #BT-2698, 12 ORDER: Plaintiff, 13 vs. DENYING MOTION TO PROCEED 14 IN FORMA PAUPERIS;

15 APPELLATE DEFENDERS, et al., [Doc. No. 2] 16 Defendants. 17 DENYING MOTION FOR SERVICE AND DISMISSING ACTION 18 WITHOUT PREJUDICE 19 [Doc. No. 4] 20

21 22 David Anthony Dean (“Plaintiff”) is a state prisoner proceeding pro se with a civil 23 rights Complaint pursuant to 42 U.S.C. § 1983. Doc. No. 1. Plaintiff has not paid the 24 civil filing fee and has instead filed a motion to proceed in forma pauperis (“IFP”). Doc. 25 No. 2. He has also filed a Motion for issuance of the summons and service by the United 26 States Marshal. Doc. No. 4. 27 28 1 I. MOTION TO PROCEED IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 5 although the administrative fee does not apply to persons granted leave to proceed IFP. 6 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 7 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure 8 to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 10 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of 11 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 12 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 13 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 14 the Court assesses an initial payment of 20% of (a) the average monthly deposits in the 15 account for the past six months, or (b) the average monthly balance in the account for the 16 past six months, whichever is greater, unless the prisoner has insufficient assets. See 28 17 U.S.C. § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who 18 proceed IFP must pay any remaining balance in “increments” or “installments,” 19 regardless of whether their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2); 20 Bruce, 577 U.S. at 84. 21 Plaintiff’s IFP application does not contain the required trust fund account 22 statement. See Doc. No. 2. The Court cannot grant his IFP application without the trust 23 fund account statement containing financial information for the 6-month period 24 immediately preceding the filing of his Complaint. See Andrews, 398 F.3d at 1119 25 (“prisoners must demonstrate that they are not able to pay the filing fee with an affidavit 26 and submission of their prison trust account records.”), citing 28 U.S.C. 27 § 1915(a)(1)&(2). Plaintiff’s motion to proceed IFP is therefore DENIED and this action 28 is DISMISSED without prejudice based on Plaintiff’s failure to pay the civil filing and 1 administrative fee or to submit a properly supported motion to proceed IFP pursuant to 28 2 U.S.C. §§ 1914(a) & 1915(a). 3 II. MOTION FOR SERVICE 4 Plaintiff requests the Court issue the summons and order service of his Complaint 5 by the United States Marshal. Doc. No. 4. Because the Court will not issue a summons 6 for service unless and until the Complaint passes screening pursuant to 28 U.S.C. 7 § 1915(e)(2) or § 1915A(b), the Request is DENIED without prejudice as premature. 8 See Martirosyan v. Baries, No. 21-cv-6433-PA-MAR, 2022 WL 2189537, at *4 (C.D. 9 Cal. May 2, 2022) (request to issue summons premature until screening process is 10 complete), citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“The 11 Prison Litigation Reform Act . . . require[s] the district court to dismiss in forma pauperis 12 prisoner civil rights suits if the court determines that the action does not state a claim 13 upon which relief may be granted.”) 14 III. CONCLUSION AND ORDER 15 Accordingly, the Court: 16 (1) DENIES Plaintiff’s motion to proceed IFP [Doc. No. 2] without prejudice. 17 (2) DENIES Plaintiff’s motion for service [Doc. No. 4] without prejudice. 18 (3) DISMISSES this civil action without prejudice based on Plaintiff’s failure 19 to pay the civil filing and administrative fee or to submit a properly supported motion to 20 proceed IFP pursuant to 28 U.S.C. §§ 1914(a) & 1915(a). 21 (4) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 22 filed to: (a) prepay the entire $405 civil filing and administrative fee in full; or (b) 23 complete and file a properly supported motion to proceed IFP which includes a certified 24 copy of his prison trust account statement for the 6-month period preceding the filing of 25 his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). If Plaintiff fails to 26 either pay the $405 civil filing fee or submit a properly supported motion to proceed IFP 27 within 45 days, this action will remain dismissed without prejudice based solely on his 28 1 || failure to satisfy 28 U.S.C. § 1914(a)’s fee requirement and without further Order of the 2 || Court. 3 IT IS SO ORDERED. 4 || Dated: December 9, 2024 5

HON. MICHAEL M. ELLO 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28