Quintero v. Hill

• Court: District Court, S.D. California
• Decided: October 2, 2024
• Docket: 3:24-cv-01141
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL R. QUINTERO, Case No.: 24cv1141-AJB (KSC) CDCR # BN-3161 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AND DISMISSING CIVIL ACTION 14

15 H. HILL, Warden, et al., 16 Defendants. 17 18 Plaintiff Daniel R. Quintero, a state prisoner proceeding pro se, has filed a civil rights 19 Complaint pursuant to 42 U.S.C. § 1983 along with a motion to proceed in forma pauperis 20 (“IFP”). (ECF Nos. 1-2.) 21 I. Motion to Proceed IFP 22 All parties instituting any civil action, suit or proceeding in a district court of the 23 United States, except an application for writ of habeas corpus, must pay a filing fee of 24 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 25 although the administrative fee does not apply to persons granted leave to proceed IFP. 26 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 27 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 28 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 1 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 2 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of 3 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 4 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 5 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 6 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 7 for the past six months, or (b) the average monthly balance in the account for the past six 8 months, whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C. 9 § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP 10 must pay any remaining balance in “increments” or “installments,” regardless of whether 11 their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84. 12 Plaintiff’s IFP application contains a trust fund account statement but it is not 13 certified and is not signed by a corrections officer. (See ECF No. 2 at 3.) Rather, Plaintiff 14 indicates that a certificate is on file in three active indigent cases he is currently proceeding 15 with in the Eastern District of California initiated in 2023. (Id.; ECF No. 4 at 4.) The Court 16 cannot grant his IFP application without a trust fund account statement containing financial 17 information for the 6-month period immediately preceding the filing of his Complaint. See 18 Andrews, 398 F.3d at 1119 (“prisoners must demonstrate that they are not able to pay the 19 filing fee with an affidavit and submission of their prison trust account records.”), citing 20 28 U.S.C. § 1915(a)(1)&(2). 21 Plaintiff’s motion to proceed IFP is DENIED and this action is DISMISSED 22 without prejudice based on Plaintiff’s failure to pay the civil filing and administrative fee 23 or to submit a properly supported motion to proceed IFP pursuant to 28 U.S.C. §§ 1914(a) 24 & 1915(a). 25 II. Conclusion and Order 26 Accordingly, the Court: 27 (1) DENIES Plaintiff’s motion to proceed IFP without prejudice. 28 / / / l (2) DISMISSES this civil action without prejudice based on Plaintiff's failure to 2 the civil filing and administrative fee or to submit a properly supported motion to 3 || proceed IFP pursuant to 28 U.S.C. §§ 1914(a) & 1915(a). 4 (3) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 5 || to: (a) prepay the entire $405 civil filing and administrative fee in full; or (b) complete and 6 || file a properly supported motion to proceed IFP which includes a certified copy of his 7 || prison trust account statement for the 6-month period preceding the filing of his Complaint. 8 || See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). If Plaintiff fails to either pay the $405 9 || civil filing fee or submit a properly supported motion to proceed IFP within 45 days, this 10 action will remain dismissed without prejudice based solely on his failure to satisfy 28 11 |/U.S.C. § 1914(a)’s fee requirement and without further Order of the Court. 12 IT IS SO ORDERED 13 ||Dated: October 2, 2024 © ¢ 14 Hon. Anthony J. attaglia 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 3