1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICARDO ORINTIS TYRELL, Case No.: 3:20-cv-01505-AJB-KSC BOP #67033-054, 12 ORDER DENYING RENEWED Plaintiff, 13 MOTION TO PROCEED IN FORMA vs. PAUPERIS AND DISMISSING 14 CIVIL ACTION WITHOUT THE UNITED STATES, et al., 15 PREJUDICE FOR FAILURE TO Defendants. PAY FILING FEE REQUIRED BY 16 28 U.S.C. § 1914(a) 17 [ECF No. 16] 18 19 20 Plaintiff Ricardo Orintis Tyrell, while detained at the Metropolitan Correctional 21 Center (“MCC”) in San Diego, California1, and with the assistance of his “next friend” 22 Monroe Jones, initiated this civil action by filing a Complaint that invokes federal 23 24 1 Plaintiff remained at MCC at the time he filed his Complaint, but pleaded guilty to one count of attempted 25 reentry of a removed alien in violation of 8 U.S.C. § 1326, was sentenced to a prison term of 12 months, including a 3-year term of supervised release, and was committed to the custody of the Bureau of Prisons 26 (“BOP”) on May 27, 2020. See United States v. Tyrell, Case No. 3:19-cr-04817-BAS-1 (ECF Nos. 19, 21, 29, 30). According to the BOP’s Inmate Locator, Plaintiff was at some subsequent point transferred from 27 MCC to FCI Mendota. See https://www.bop.gov/inmateloc/ (BOP Register No. 67033-054) (last visited June 4, 2021); United States v. Basher, 629 F.3d 1161, 1165 n.2 (9th Cir. 2011) (taking judicial notice of 28 1 jurisdiction pursuant to both Bivens v. Six Unknown Named Agents of the Federal Bureau 2 of Narcotics, 403 U.S. 388 (1971) and 42 U.S.C. § 1983. See Compl., ECF No. 1; ECF No. 3 5. Plaintiff did not prepay the filing fee required by 28 U.S.C. § 1914(a) when he tendered 4 his Complaint to the Clerk, but instead filed several Motions to Proceed In Forma Pauperis 5 (“IFP”) pursuant to 28 U.S.C. § 1915(a), a Motion for Appointment of Counsel, and a 6 Notice seeking to designate Jones with the authority to pursue this litigation on his behalf. 7 See ECF Nos. 3, 5, 11, 13. 8 On November 23, 2020, the Court denied Plaintiff’s motions to appoint counsel, to 9 designate Jones as his next friend, and to proceed IFP because he failed to include the 10 prison trust account certifications required by 28 U.S.C. § 1915(a)(2). See ECF No. 15. 11 Plaintiff was granted leave to re-submit a new request for leave to proceed IFP however, 12 in order to correct this deficiency. Id. at 7. In that same Order, the Court cautioned that 13 should Plaintiff elect to successfully file the renewed IFP Motion provided to him by the 14 Clerk of the Court, he would remain obligated to pay the full civil filing fee in installments, 15 and face potential immediate sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) 16 and § 1915A(b). See ECF No. 15 at 6 n.5. Plaintiff has since filed a renewed Motion to 17 Proceed to Proceed IFP, see ECF No. 16, but it again fails to include the trust account 18 certifications required by 28 U.S.C. § 1915(a). 19 I. Renewed Motion to Proceed IFP 20 As Plaintiff now knows, all parties instituting any civil action, suit or proceeding in 21 a district court of the United States, except an application for writ of habeas corpus, must 22 pay a filing fee of $400.2 See 28 U.S.C. § 1914(a). Under 28 U.S.C. § 1915(a), the Court 23
24 25 2 For civil cases like this one, filed before December 1, 2020, the civil litigant bringing suit must pay the $350 statutory fee in addition to a $50 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference 26 Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June. 1, 2016). The $50 administrative fee does not apply to persons granted leave to proceed IFP, however. Id. This administrative fee increased to 27 $52 for civil cases filed on or after December 1, 2020, but that portion still does not apply to persons granted leave to proceed IFP. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District 28 1 may authorize a plaintiff to pursue a case without payment of the filing fee. Whether an 2 affiant has satisfied § 1915(a) falls within “the reviewing court[’s] . . . sound discretion.” 3 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other 4 grounds, 506 U.S. 194 (1993). A party need not “be absolutely destitute” to proceed IFP. 5 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). “Nonetheless, a 6 plaintiff seeking IFP status must allege poverty ‘with some particularity, definiteness, and 7 certainty.’” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing United 8 States v. McQuade, 647 F.3d 938, 940 (9th Cir. 1981)). 9 “An affidavit in support of an IFP application is sufficient where it alleges that the 10 affiant cannot pay the court costs and still afford the necessities of life.” Id. And while “a 11 prisoner’s financial needs are not the same as those of a non-prisoner,” and one “without 12 funds [may] not be denied access to a federal court based on his poverty,” Taylor v. 13 Delatoore, 281 F.3d 844, 849 (9th Cir. 2002) (citing 28 U.S.C. § 1915(b)(4)), “even- 14 handed care must be employed to assure that federal funds are not squandered to 15 underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who 16 is financially able, in whole or in part, to pull his own oar.” Temple v. Ellerthorp, 586 F. 17 Supp. 848, 850 (D. R.I. 1984); see also Frost v. Child and Family Services of San 18 Bernardino Cnty & San Bernardino Juvenile Court, No. 3:20-CV-2402-JLS-BLM, 2021 19 WL 1195834, at *1 (S.D. Cal. Mar. 30, 2021). 20 Before the enactment of the Prison Litigation Reform Act (“PLRA”) in 1996, 21 “indigent prisoners, like other indigent persons, could file a civil action without paying any 22 filing fee.” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016) (citing 28 U.S.C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICARDO ORINTIS TYRELL, Case No.: 3:20-cv-01505-AJB-KSC BOP #67033-054, 12 ORDER DENYING RENEWED Plaintiff, 13 MOTION TO PROCEED IN FORMA vs. PAUPERIS AND DISMISSING 14 CIVIL ACTION WITHOUT THE UNITED STATES, et al., 15 PREJUDICE FOR FAILURE TO Defendants. PAY FILING FEE REQUIRED BY 16 28 U.S.C. § 1914(a) 17 [ECF No. 16] 18 19 20 Plaintiff Ricardo Orintis Tyrell, while detained at the Metropolitan Correctional 21 Center (“MCC”) in San Diego, California1, and with the assistance of his “next friend” 22 Monroe Jones, initiated this civil action by filing a Complaint that invokes federal 23 24 1 Plaintiff remained at MCC at the time he filed his Complaint, but pleaded guilty to one count of attempted 25 reentry of a removed alien in violation of 8 U.S.C. § 1326, was sentenced to a prison term of 12 months, including a 3-year term of supervised release, and was committed to the custody of the Bureau of Prisons 26 (“BOP”) on May 27, 2020. See United States v. Tyrell, Case No. 3:19-cr-04817-BAS-1 (ECF Nos. 19, 21, 29, 30). According to the BOP’s Inmate Locator, Plaintiff was at some subsequent point transferred from 27 MCC to FCI Mendota. See https://www.bop.gov/inmateloc/ (BOP Register No. 67033-054) (last visited June 4, 2021); United States v. Basher, 629 F.3d 1161, 1165 n.2 (9th Cir. 2011) (taking judicial notice of 28 1 jurisdiction pursuant to both Bivens v. Six Unknown Named Agents of the Federal Bureau 2 of Narcotics, 403 U.S. 388 (1971) and 42 U.S.C. § 1983. See Compl., ECF No. 1; ECF No. 3 5. Plaintiff did not prepay the filing fee required by 28 U.S.C. § 1914(a) when he tendered 4 his Complaint to the Clerk, but instead filed several Motions to Proceed In Forma Pauperis 5 (“IFP”) pursuant to 28 U.S.C. § 1915(a), a Motion for Appointment of Counsel, and a 6 Notice seeking to designate Jones with the authority to pursue this litigation on his behalf. 7 See ECF Nos. 3, 5, 11, 13. 8 On November 23, 2020, the Court denied Plaintiff’s motions to appoint counsel, to 9 designate Jones as his next friend, and to proceed IFP because he failed to include the 10 prison trust account certifications required by 28 U.S.C. § 1915(a)(2). See ECF No. 15. 11 Plaintiff was granted leave to re-submit a new request for leave to proceed IFP however, 12 in order to correct this deficiency. Id. at 7. In that same Order, the Court cautioned that 13 should Plaintiff elect to successfully file the renewed IFP Motion provided to him by the 14 Clerk of the Court, he would remain obligated to pay the full civil filing fee in installments, 15 and face potential immediate sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) 16 and § 1915A(b). See ECF No. 15 at 6 n.5. Plaintiff has since filed a renewed Motion to 17 Proceed to Proceed IFP, see ECF No. 16, but it again fails to include the trust account 18 certifications required by 28 U.S.C. § 1915(a). 19 I. Renewed Motion to Proceed IFP 20 As Plaintiff now knows, all parties instituting any civil action, suit or proceeding in 21 a district court of the United States, except an application for writ of habeas corpus, must 22 pay a filing fee of $400.2 See 28 U.S.C. § 1914(a). Under 28 U.S.C. § 1915(a), the Court 23
24 25 2 For civil cases like this one, filed before December 1, 2020, the civil litigant bringing suit must pay the $350 statutory fee in addition to a $50 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference 26 Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June. 1, 2016). The $50 administrative fee does not apply to persons granted leave to proceed IFP, however. Id. This administrative fee increased to 27 $52 for civil cases filed on or after December 1, 2020, but that portion still does not apply to persons granted leave to proceed IFP. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District 28 1 may authorize a plaintiff to pursue a case without payment of the filing fee. Whether an 2 affiant has satisfied § 1915(a) falls within “the reviewing court[’s] . . . sound discretion.” 3 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other 4 grounds, 506 U.S. 194 (1993). A party need not “be absolutely destitute” to proceed IFP. 5 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). “Nonetheless, a 6 plaintiff seeking IFP status must allege poverty ‘with some particularity, definiteness, and 7 certainty.’” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing United 8 States v. McQuade, 647 F.3d 938, 940 (9th Cir. 1981)). 9 “An affidavit in support of an IFP application is sufficient where it alleges that the 10 affiant cannot pay the court costs and still afford the necessities of life.” Id. And while “a 11 prisoner’s financial needs are not the same as those of a non-prisoner,” and one “without 12 funds [may] not be denied access to a federal court based on his poverty,” Taylor v. 13 Delatoore, 281 F.3d 844, 849 (9th Cir. 2002) (citing 28 U.S.C. § 1915(b)(4)), “even- 14 handed care must be employed to assure that federal funds are not squandered to 15 underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who 16 is financially able, in whole or in part, to pull his own oar.” Temple v. Ellerthorp, 586 F. 17 Supp. 848, 850 (D. R.I. 1984); see also Frost v. Child and Family Services of San 18 Bernardino Cnty & San Bernardino Juvenile Court, No. 3:20-CV-2402-JLS-BLM, 2021 19 WL 1195834, at *1 (S.D. Cal. Mar. 30, 2021). 20 Before the enactment of the Prison Litigation Reform Act (“PLRA”) in 1996, 21 “indigent prisoners, like other indigent persons, could file a civil action without paying any 22 filing fee.” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016) (citing 28 U.S.C. § 1915(a)(1)). 23 The PLRA however, “placed several limitations on prisoner litigation in federal courts.” 24 Id. at 84. While his civil action or appeal may proceed upon submission of an affidavit that 25 demonstrates an “unab[ility] to pay such fees or give security therefor,” 28 U.S.C. 26 § 1915(a); see also Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez 27 v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999), a prisoner granted leave to proceed IFP 28 remains obligated to pay the entire fee in “increments” or “installments,” Bruce 577 U.S. 1 at 84, 85; Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 2 whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor, 281 3 F.3d at 847. 4 Thus, section 1915(a)(2) requires prisoners to submit a “certified copy of the[ir] trust 5 fund account statement (or institutional equivalent) for . . . the 6-month period immediately 6 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 7 1113, 1119 (9th Cir. 2005). From the certified trust account statement, “the district court 8 must make a series of factual findings regarding the prisoner’s assets.” Taylor, 281 F.3d at 9 847 n.2. It must assess an initial payment of 20% of (a) the average monthly deposits in 10 the account for the past six months, or (b) the average monthly balance in the account for 11 the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 12 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then 13 collects subsequent payments, assessed at 20% of the preceding month’s income, in any 14 month in which his account exceeds $10, and forwards those payments to the Court until 15 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 85‒86. 16 In response to the Court’s previous Order, Plaintiff has now filed the form “Motion 17 and Declaration Under Penalty of Perjury in Support of Motion to Proceed In Forma 18 Pauperis” which the Clerk of Court provided to him. See ECF No. 16. But the form is 19 missing two pages, and critically, the “Prison Certificate” section which must be completed 20 and signed by an authorized officer of the institution where he is incarcerated, and attest as 21 to Plaintiff’s prior 6-month average monthly trust account balance and deposits. See id. at 22 1-2; cf. https://www.casd.uscourts.gov /_ assets/ pdf/ forms/ Motion%20 to% 20Proceed 23 %20In%20Forma%20Pauperis.pdf (last visited June 4, 2021). In place of the prison 24 certificate provided to him for completion, and in lieu of a financial statement or report 25 documenting his trust fund deposits and balances for the 6-month period required by 28 26 U.S.C. § 1915(a), Plaintiff instead attaches a document entitled “Truweb Inmate Inquiry” 27 dated December 23, 2020. This document appears to have been issued by prison officials 28 at FCI-Mendota, the institution where he is currently incarcerated, and it indicates 1 Plaintiff’s available balance as of December 23, 2020. See ECF No. 16 at 4. But it is 2 nevertheless incomplete because it does not include any report of Plaintiff’s average 3 monthly deposits or trust account balances for the 6-month period preceding the filing of 4 this action. See ECF No. 16 at 4. 5 As the Court noted in its November 23, 2020 Order, in order to show he is eligible 6 to proceed IFP pursuant to 28 U.S.C. § 1915(a)(1), Plaintiff must “submit a certified copy 7 of the trust fund account statement (or institutional equivalent) for the … 6-month period 8 immediately preceding the filing of [his] complaint, … from the appropriate official of 9 each prison at which [he] was confined.” See ECF No. 15 at 4; 28 U.S.C. § 1915(a)(2) 10 (emphasis added); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119; see also Castillo v. 11 Doe, No. CV2100527PHXJATESW, 2021 WL 1338314, at *1 (D. Ariz. Apr. 9, 2021) 12 (denying prisoner’s Motion to Proceed IFP for failing to comply with 28 U.S.C. 13 § 1915(a)(2) where he “used the court-approved form” but failed to complete the 14 “Certificate of Correctional Official as to Status of Applicant’s Trust Account” portion and 15 did not “submit[] a certified six-month trust account statement.”). 16 Without this certified documentation, the Court remains unable to fulfill its statutory 17 duty to assess the appropriate amount of a filing fee which my be required for Plaintiff to 18 prosecute this civil action. Therefore, his renewed Motion to Proceed IFP (ECF No. 16) 19 must also be DENIED. 20 II. Conclusion and Order 21 For the reasons discussed, the Court: 22 1) DENIES Plaintiff’s Renewed Motion to Proceed IFP (ECF No. 16) and once 23 again DISMISSES this civil action without prejudice based on his failure to prepay the 24 $400 filing fee required by 28 U.S.C. § 1914(a); 25 2) GRANTS Plaintiff thirty (30) additional days from the date of this Order in 26 which to re-open his case by either: (a) paying the entire $400 statutory and administrative 27 filing fee, or (b) filing a second renewed Motion to Proceed IFP, which includes a certified 28 copy of his trust account statement for the 6-month period preceding the filing of his 1 || Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b); and 2 3) DIRECTS the Clerk of the Court to provide Plaintiff with another Court- 3 ||approved form “Motion and Declaration in Support of Motion to Proceed IFP” in this 4 || matter. If Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and 5 || files the attached Motion to Proceed IFP, together with a certified copy of his 6-month trust 6 || account records within 30 days, this case will remain dismissed without prejudice pursuant 7 28 U.S.C. § 1914(a), and without further Order of the Court.’ 8 IT ISSO ORDERED. 9 Dated: June 7, 2021 © 10 Hon, Anthony J.Battaglia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 ||3 Plaintiff is once again cautioned that if he chooses to proceed further by either prepaying the full $400 24 civil filing fee, or submitting a second renewed and properly supported Motion to Proceed IFP, his Complaint will be reviewed before service and may be dismissed pursuant to 28 U.S.C. § 1915A(b) and/or 95 US.C. § 1915(e)(2)(B), regardless of whether he pays the fee in full or is obligated to pay the fee in installments. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. 26 || § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune); 27 || see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required 28 by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.”).