Lewis v. Paramo

Opinion

BRIAN DEVERICK LEWIS, Case No.: 3:22-cv-0029-GPC-DEB CDCR #J-49028 ORDER (1) DENYING MOTION Plaintiff, PAUPERIS (ECF No. 2) AND vs. (2) DISMISSING CIVIL ACTION FOR FAILING TO SATISFY THE DANIEL PARAMO, Warden, A. FILING FEE REQUIRED BY 28 HAMMETT, J. MENDEZ, R. BATTAD, U.S.C. § 1914(A) F. GRISEZ, R. ESQUILIN, Defendants. Brian Deverick Lewis (“Plaintiff” or “Lewis”), an inmate currently detained at California State Prison, located in Corcoran, California and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. He has also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. I. Motion to Proceed In Forma Pauperis All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $402. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). Section 1915(a)(2) requires all persons seeking to proceed without full prepayment of fees to file an affidavit that includes a statement of all assets possessed and demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month’s income, in any month in which his account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 84. / / /

1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to persons granted leave to In support of his IFP Motion, Lewis has submitted a copy of his Inmate Trust Account Statement as well as a Prison Certificate completed by an accounting officer at GPDF. See ECF No. 2 at 6-8; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These statements show that between June 7, 2021 and December 7, 2021, Plaintiff maintained an average monthly balance of $664.26 and had $168.86 in average monthly deposits credited to his account. His available balance as of December 7, 2021, was $689.95. ECF No. 2 at 7. In this matter, Plaintiff has not shown the indigence required to proceed IFP. Therefore, because Plaintiff has shown that he is able to pay the $402 filing fee in total, Plaintiff's Motion to Proceed IFP is DENIED. Conclusion and Order 1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2); 2) DISMISSES this action without prejudice for failure to pay the full statutory and administrative $402 civil filing fee required by 28 U.S.C. § 1914(a); 3) Plaintiff is granted thirty (45) days leave from the date this Order is “Filed” in which to pay the $402 initial civil filing fee or provide adequate proof of his inability to pay. Dated: April 14, 2022 72 Hon. athe Cae 71 United States District Judge