1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOAQUIN FRAZIER, Case No.: 3:19-cv-00911-GPC-BGS Inmate #104607, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. PURSUANT TO 14

(a) SAN DIEGO POLICE DEPARTMENT, 15 et al., [ECF No. 3] 16 Defendants. 17 18 Plaintiff Joaquin Frazier, currently incarcerated Caddo Correctional Center in 19 Shreveport, Louisiana, and proceeding pro se, filed a civil right complaint pursuant to 42

on May 13, 2019. (See Compl., ECF No. 1.) Frazier alleges the San Diego 21 Police Department, Sheriff’s Office, and San Diego State Courts violated his constitutional 22 rights by falsely arresting him in San Diego in 2014, and by physically assaulting him while 23 he was held in pretrial custody in 2015. (Id. at 4-7.) He seeks $350 million in compensatory 24 and punitive damages. (Id. at 8-12.) 25 I. Procedural History 26 On May 21, 2019, the Court dismissed Frazier’s case because he failed to prepay the 27 $400 civil filing fee required by

(a), and did not file a Motion to Proceed 28 In Forma Pauperis (“IFP”) pursuant to

(a) (ECF No. 2). However, the 1 Court granted Frazier 45 days leave to fix these deficiencies, directed the Clerk of the Court 2 to provide him with its approved form Motion to Proceed IFP, and cautioned that he must 3 “include a certified copy of his prison trust account statements for the 6-month period 4 preceding the filing of his Complaint,” as required by

(a)(2) and S.D. Cal. 5 CivLR 3.2(b). (See ECF No. 2 at 3-4.) 6 On July 5, 2019, Frazier filed a Motion to Proceed IFP (ECF No. 3). 7 II. Motion to Proceed IFP 8 As Frazier now knows, all parties instituting any civil action, suit or proceeding in a 9 district court of the United States, except an application for writ of habeas corpus, must 10 pay a filing fee of $400. See

(a). The action may proceed despite failure 11 to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28

(a). See Andrews v. Cervantes,

(9th Cir. 2007); 13 Rodriguez v. Cook,

(9th Cir. 1999). Prisoners granted leave to proceed 14 IFP remain obligated to pay the entire fee by “installments,” Bruce v. Samuels,

627, 629 (2016); Williams v. Paramo,

(9th Cir. 2015), and regardless 16 of outcome. See

(b)(1) & (2). 17 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 18 of fees to submit an affidavit that includes a statement of all assets possessed and 19 demonstrates an inability to pay. See Escobedo v. Applebees,

(9th Cir. 20 2015). In support of this affidavit, section 1915(a)(2) also requires that prisoners, like 21 Frazier, “seeking to bring a civil action ... without prepayment of fees ... shall submit a 22 certified copy of the trust fund account statement (or institutional equivalent) ... for the 6- 23 month period immediately preceding the filing of the complaint.”

(a)(2) 24 (emphasis added); see also Andrews v. King,

(9th Cir. 2005). 25 From the certified trust account statement, the Court must assess an initial payment 26 of 20% of (a) the average monthly deposits in the account for the past six months, or (b) 27 the average monthly balance in the account for the past six months, whichever is greater, 28 unless the prisoner has no assets. See

(b)(1), (b)(4). The institution having 1 custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding 2 month’s income, in any month in which his account exceeds $10, and forward those 3 payments to the Court until the entire filing fee is paid. See

(b)(2); Bruce, 4 136 S. Ct. at 629. 5 While Frazier has now filed a Motion to Proceed IFP, it fails to comply with 28

(a)(2) because it does not include a certified copy of his trust fund account 7 statements, or an “institutional equivalent” issued by Caddo Correctional Center officials, 8 attesting as to his trust account activity and balances for the 6-month period preceding the 9 filing of this action. See

(a)(2); S.D. Cal. CivLR 3.2.b. Without this 10 accounting, the Court remains unable to fulfill its statutory duty to assess the appropriate 11 amount of initial filing fee which may be required to further prosecute Frazier’s case. See 12

(b)(1). 13 III. Conclusion and Order 14 Accordingly, IT IS ORDERED that: 15 (1) Plaintiff’s Motion to Proceed IFP (ECF No. 3) is DENIED and the action is 16 again DISMISSED without prejudice for failure to prepay the $400 filing fee required by 17

(a). 18 (2) Plaintiff is GRANTED an additional opportunity to correct his IFP 19 deficiencies and an additional forty-five (45) days leave from the date of this Order in 20 which to re-open his case by either: (a) paying the entire $400 statutory and administrative 21 filing fee, or (b) filing a renewed Motion to Proceed IFP, which must include a certified 22 copy of his prison trust account statements for the 6-month period preceding the filing of 23 his Complaint pursuant to

(a)(2) and S.D. Cal. CivLR 3.2(b).2 24 25 2 Plaintiff is once again cautioned that if he chooses to proceed either by prepaying the full $400 civil 26 filing fee, or by submitting a renewed and properly supported Motion to Proceed IFP, his Complaint will be screened before service and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) and/or 28

(e)(2)(B), regardless of whether he pays or is obligated to pay filing fees. See Lopez v. Smith,

(9th Cir. 2000) (en banc) (noting that

(e) “not only permits but 28 requires” the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, fails 1 (3) The Clerk of the Court is DIRECTED to provide Plaintiff with one more 2 || Court-approved form “Motion and Declaration in Support of Motion to Proceed □□□□□ for 3 ||his use and convenience. If Frazier neither pays the $400 filing fee in full nor sufficiently 4 ||completes and files the attached Motion to Proceed IFP, together with a certified copy of 5 || his trust account statements within 30 days, this civil action will remain dismissed without 6 || prejudice pursuant to

(a), and without further Order of the Court. 7 IT IS SO ORDERED. 8 9 Dated: September 9, 2019 2 << 10 Hon. athe Coke 1] United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 © | 27 I complaints filed by prisoners “seeking redress from a governmental entity or officer or employee □□ 9 || governmental entity.”). 4