James Denerick Nelson, Jr. v. Solicitor General of the United States

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES DENERICK NELSON, JR., Case No.: 26-cv-0180-AJB-KSC

12 Petitioner, ORDER: (1) DENYING MOTION 13 vs. TO PROCEED IN FORMA PAUPERIS, AND 14

15 SOLICITOR GENERAL OF THE UNITED (2) DISMISSING CIVIL ACTION STATES, WITHOUT PREJUDICE FOR 16 Respondent. FAILURE TO PAY FILING FEES 17 REQUIRED BY 28 U.S.C. § 1914(a)

18 (Doc. No. 2) 19 20 21 James Denerick Nelson, Jr. (“Petitioner”), a state prisoner pro se, has filed a Petition 22 for Writ of Mandamus. Doc. No. 1. In lieu of paying the filing fee required by 28 U.S.C. 23 § 1914(a), Petitioner has also filed a Motion to Proceed In Forma Pauperis (“IFP”) 24 pursuant to 28 U.S.C. § 1915(a). (Doc. No. 2.) For the reasons discussed below, the Court 25 denies Petitioner’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 Petitioner 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, Petitioner’s IFP Motion is incomplete because he has not included a certified 22 copy of his trust account statement for the 6-month period immediately preceding the filing 23 of his civil action. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Without a certified 24 trust account statement, the Court is unable to assess whether any initial partial filing fee 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 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 administrative fee does not apply to 28 1 || may be required to initiate the prosecution of Petitioner’s case. See 28 U.S.C. § 1915(b)(1). 2 H. CONCLUSION AND ORDER 3 Accordingly, the Court: 4 (1) DENIES Petitioner’s Motion to Proceed IFP (Doc. No. 2) and DISMISSES 5 ||the action without prejudice. See 28 U.S.C. §§ 1915(a) & 1914 (a). 6 (2) GRANTS Petitioner forty-five (45) days from the date this Order to re-open 7 || her case by either: (a) prepaying the entire $405 civil filing and administrative fee in one 8 ||lump-sum; or (b) filing a renewed Motion to Proceed IFP, which includes a prison 9 || certificate, signed by a trust accounting official attesting as to her trust account balances 10 || and deposits and/or a certified copy of her Inmate Statement Report for the 6-month period 11 || preceding the filing of her Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. 12 || CivLR 3.2(b). 13 If Petitioner 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 Petitioner’s failure to comply with 28 U.S.C. § 1914(a). 17 (3) DIRECTS to provide Petitioner with a Court-approved form “Motion and 18 || Declaration in Support of Motion to Proceed Jn Forma Pauperis.” 19 IT IS SO ORDERED. 20 || Dated: March 11, 2026 © 21 Hon, Anthony J.Battaglia 22 United States District Judge 23 24 25 26 27 28