Jacome v. IRS of California

• Court: District Court, S.D. California
• Decided: January 6, 2022
• Docket: 3:21-cv-02083
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEXANDER JACOME, Case No.: 21cv2083-JLS (MSB) CDCR #BD-1845, 12 ORDER DENYING MOTION TO Petitioner, 13 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 28 U.S.C. § 1915(a) 14

15 IRS OF CALIFORNIA, et al., 16 Respondents. 17 18 19 20 On December 2, 2021, Petitioner Alexander Jacome, a state prisoner proceeding pro 21 se, filed this action pursuant to the All Writs Act, 28 U.S.C. § 1651, but failed to pay the 22 $402 civil filing fee or submit a request to proceed in forma pauperis (“IFP”). (ECF No. 23 1.) Petitioner sought a writ of mandate from this Court directing his early release from 24 state custody and requiring payment of his “stimulus money.” (Id. at 1–3.) 25 On December 16, 2021, the Court dismissed this action without prejudice for failure 26 to satisfy the filing fee requirement. (ECF No. 2.) Petitioner was instructed that he was 27 required to either pay the entire filing fee or submit a request to proceed IFP on or before 28 January 14, 2022. (Id. at 1.) 1 On December 28, 2021, Petitioner filed a document titled: “Amended Federal 2 Habeas Corpus 2254. Application to Proceed ‘In Forma Pauperis.’” (ECF No. 3.) In this 3 document, Petitioner states that he wishes to have this action construed as a Petition for a 4 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in which he is challenging his state 5 court convictions and that he sent a 2254 habeas petition form to the Court which should 6 have arrived before the instant document. (Id. at 1–2.) As of the date of this Order, the 7 Court has received no such habeas petition form from Petitioner. 8 All parties instituting any civil action in a district court of the United States must 9 pay a filing fee of $402, with the exception of a petition for writ of habeas corpus for which 10 the filing fee is $5.00, and the action may proceed despite a failure to prepay the entire fee 11 only if leave to proceed IFP is granted pursuant to 28 U.S.C. § 1915(a).1 See 28 U.S.C. 12 § 1914(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 13 Irrespective of whether this action is construed as a civil action requiring a $402 civil 14 filing fee or a habeas action requiring a $5.00 filing fee, a request to proceed IFP from a 15 prisoner must include a certificate from the warden or other appropriate officer showing 16 the amount of money or securities Petitioner has on account in the institution. See 17 Rule 3(a), 28 U.S.C. foll. § 2254; 28 U.S.C. § 1915(a)(2). Petitioner failed to submit the 18 required prison certificate and has in fact presented no financial documentation 19 whatsoever. 20 Accordingly, Petitioner’s Motion to Proceed In Forma Pauperis (ECF No. 3) is 21 hereby DENIED and this action remains DISMISSED without prejudice for failure to 22 satisfy the filing fee requirement. Petitioner must, on or before February 14, 2022, either: 23 (a) prepay the entire filing fee in full; or (b) complete and file a Motion to Proceed In Forma 24 Pauperis which complies with 28 U.S.C. § 1915(a)(2) and the Southern District of 25

26 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed 27 IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial 28 Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). 1 || California’s Civil Local Rule 3.2(b). The Clerk of the Court is DIRECTED to provide 2 || Petitioner with this Court’s approved form “Motion and Declaration in Support of Motion 3 Proceed In Forma Pauperis” along with a copy of this Order. If Petitioner fails to timely 4 || prepay the filing fee or timely complete and submit the enclosed Motion to Proceed In 5 || Forma Pauperis the Court will enter a final judgment of dismissal. 6 IT IS SO ORDERED. 7 ||Dated: January 6, 2022 tt 8 jen Janis L. Sammartino 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3