Murillo v. Ramos

Opinion

R. MONA MURILLO, Case No.: 22-cv-548-MMA (AGS) CDCR #P-43503, ORDER DENYING MOTION TO Plaintiff, PROCEED IN FORMA PAUPERIS; vs. [Doc. No. 15]

A. RAMOS, et al., DISMISSING CIVIL ACTION FOR Defendants. FAILURE TO PAY THE FILING FEE REQUIRED BY 28 U.S.C. § 1914(a); AND

DENYING MOTION REQUESTING COURT TO ORDER RJD/CDCR TO PROVIDE INMATE TRUST ACCOUNT REPORT AS MOOT

[Doc. No. 16]

R. Mona Murillo (“Plaintiff” or “Murillo”), currently incarcerated at the Richard J. Donovan State Prison (“RJD”) located in San Diego, California, and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Doc. No. 1 (“Compl.”). This pleading was initially rejected by the Court for failure to comply with General Order 653A, see Doc. No. 2, but the Court later permitted Plaintiff to file a First Amended Complaint (“FAC”). Doc. No. 6. Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, she filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Doc. No. 11. On July 28, 2022, the Court denied Plaintiff’s Motion to Proceed IFP because Plaintiff’s trust account statements indicated that she had sufficient funds to pay the $402 filing fee in full. Doc. No. 12. Plaintiff was given until September 2, 2022, to pay the initial civil filing fee in order to re-open this action. See id. Instead of paying the initial civil filing fee, Plaintiff has filed a renewed Motion to Proceed IFP, along with a “Motion Requesting the Court to Order RJD/CDCR to provide an Inmate Trust Account Report.” Doc. Nos. 15, 16. The Court DENIES Plaintiff’s Motion as moot in light of the filing of her current trust account statement on September 20, 2022. Doc. No. 17. 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 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to prepay the entire fee only if she 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, a prisoner granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether her 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 prisoners seeking leave to proceed IFP to submit a

1 For civil cases filed after December 1, 2020, the civil litigant bringing suit must pay the $350 statutory fee in addition to a $52 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The $52 administrative fee does not “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. In support of her request to proceed IFP, Plaintiff’s prison certificate authorized by an RJD accounting official and a copy of her CDCR Inmate Statement Report has, once again, been submitted. See Doc. No. 17; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show that for the preceding six months, Plaintiff carried an average monthly balance of $2,302.06 and average monthly deposits of $418.99. See Doc. No. 17. The balance in Plaintiff’s trust account as of September 20, 2022, was $2,312.41. Id. Plaintiff, once again, has not shown the indigence required to proceed IFP. Therefore, because Plaintiff is able to pay the filing fee in total, Plaintiff’s Motion to Proceed IFP is DENIED. This is Plaintiff’s second Motion to Proceed IFP and in this filing, Plaintiff has more funds than she did when she filed her first Motion to Proceed IFP. No further Motions to Proceed IFP will be considered in this matter. If Plaintiff does not pay the initial civil filing fee within the time set forth below, the Court will enter a final order dismissing this action for failure to pay the initial civil filing fee and for failure to comply with the Court’s Order. For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Court Order as moot (Doc. No. 16), DENIES Plaintiff’s Motion to Proceed IFP (Doc. No. 15), and 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). Plaintiff is granted forty-five (45) days leave from the date this Order is “Filed” in which to pay the $402 initial civil filing fee. Dated: November 15, 2022 Matha UJu- (ikl HON. MICHAEL M. ANELLO United States District Judge 4 ee