Reed v. Buckel

• Court: District Court, S.D. California
• Decided: January 29, 2024
• Docket: 3:24-cv-00179
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MYCHAL REED, Case No.: 24-cv-0179-MMA (AHG) CDCR #AE-9821 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AND DISMISSING CIVIL 14 ACTION WITHOUT PREJUDICE A. BUCKEL, S. STEADMAN, T. 15 MARTINEZ, B. COLON, B. CATES, et al., [Doc. No. 2] 16 Defendants. 17 18 19 Mychal Reed (“Plaintiff”), an inmate proceeding pro se, has filed a civil rights 20 complaint pursuant to 42 U.S.C. § 1983. ECF No. 1. In lieu of paying the filing fee 21 required by 28 U.S.C. § 1914(a), Plaintiff filed a Motion to Proceed In Forma Pauperis 22 (“IFP”) pursuant to 28 U.S.C. § 1915(a). ECF No. 2. 23 I. MOTION TO PROCEED IFP 24 All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 $405. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 27 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 28 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 1 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, all prisoners who proceed IFP must 2 pay the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83– 3 84 (2016), and regardless of whether their action is ultimately dismissed. See 28 U.S.C. 4 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 5 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 6 of fees to file an affidavit that includes a statement of all assets possessed and 7 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 8 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a 9 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 10 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 11 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). 12 Although Plaintiff has filed a Motion to Proceed IFP, he has not submitted a 13 certified trust account statement “for the 6-month period immediately preceding the filing 14 of the complaint.” 28 U.S.C. § 1915(a)(2). Because Plaintiff has neither paid the filing 15 fee required by 28 U.S.C. § 1914(a) to commence a civil action, nor filed a properly 16 supported Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), his case cannot yet 17 proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 18 II. CONCLUSION AND ORDER 19 For this reason, IT IS ORDERED that: 20 (1) Plaintiff’s Motion to Proceed IFP (ECF No. 2) is DENIED, and the action is 21 DISMISSED without prejudice for failure to prepay the $405 civil filing fee required by 22 28 U.S.C. § 1914(a); 23 (2) Plaintiff is GRANTED forty-five (45) days from the date this Order in 24 which to re-open his case by either: (a) prepaying the entire $405 civil filing and 25 administrative fee in one lump-sum; or (b) filing a renewed Motion to Proceed IFP, 26 which includes a prison certificate, signed by a trust accounting official attesting as to 27 his trust account balances and deposits and/or a certified copy of his Inmate Statement 28 / / / 1 || Report for the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. 2 1915(a)(2) and S.D. Cal. CivLR 3.2(b); and 3 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with a Court- 4 ||approved form “Motion and Declaration in Support of Motion to Proceed Jn Forma 5 || Pauperis.” 6 IT IS SO ORDERED. 7 || Dated: January 29, 2024 8 Miku Tu - (ciples HON. MICHAEL M. ANELLO 9 United States District Judge 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28