Smith Arizmendez v. McCourt

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA ISSAC L. SMITH ARIZMENDEZ, Case No.: 3:23-cv-01625-CAB-DDL CDCR #J-03517, ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 15 1914(a) DANIEL MCCOURT, Defendant.

19 Plaintiff Issac L. Smith Arizmendez or “Plaintiff”), currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this case pursuant to 42 U.S.C. § 1983. See ECF No. 1. Plaintiff alleges his Eighth Amendment rights were violated when he housed in a cell without a functioning toilet “for weeks.” Id. at 10.

24 I. Failure to Pay Filing Fee or Request IFP Status 25 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 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007) (“Cervantes”); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 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 his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

8 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment of fees to submit an affidavit that includes a statement of all assets possessed and which demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (emphasis added). In support of this affidavit, prisoners like Plaintiff must also submit a “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). It is from the certified trust account statement that 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 he has no assets. See 28 18 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 85‒86.

22 Plaintiff did not pay the filing fee required to commence a civil action when he filed his Complaint, nor has he filed a Motion to Proceed IFP, which includes both the affidavit required by 28 U.S.C. § 1915(a)(1) and the certified copies of his trust funds account statements required by 28 U.S.C. § 1915(a)(2). While RJD has submitted a prison certificate and CDCR printout of Plaintiff’s trust account activity on his behalf, see ECF No. 2, this accounting, unless accompanied by a motion and affidavit submitted by Plaintiff, is by itself insufficient. “The in forma pauperis statute authorizes courts to allow ‘[1] the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who [2] makes affidavit that he is [3] unable to pay such costs or give security therefor.’” Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 5 194, 214 (1993) (quoting 28 U.S.C. § 1915(a)). “Section 1915(a) thus contemplates that the []person[] who is entitled to the benefits of the provision will have three characteristics: He will have the capacity to sue or be sued, to make an affidavit, and to be unable to pay court costs.” Id. “Such affidavit shall [also] state the nature of the action, … and affiant’s belief that [he] is entitled to redress.” 28 U.S.C. § 1915(a)(1). “When a claim of poverty is made under section 1915 ‘it is proper and indeed essential for the supporting affidavits to state the facts as to affiant’s poverty with some particularity, definiteness and certainty.’”

12 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (citing Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)).

14 Therefore, unless Plaintiff either pays the filing fee “upfront,” Bruce, 577 U.S. at 86, or files a properly supported Motion to Proceed IFP that includes an affidavit that meets the requirements set out in 28 U.S.C. § 1915(a)(1), his case cannot proceed. See 28 U.S.C. § 1914(a); Cervantes, 493 F.3d at 1051.

18 II. Conclusion and Order 19 Accordingly, the Court: 20 (1) DISMISSES this action without prejudice based on Plaintiff’s failure to pay the $402 civil filing and administrative fee required by 28 U.S.C. § 1914(a), and his failure to properly move to proceed IFP pursuant to 28 U.S.C. § 1915(a); 23 (2) GRANTS Plaintiff forty-five (45) days leave from the date of this Order to re-open his case by: (a) prepaying the entire $402 civil filing and administrative fee required by 28 U.S.C. § 1914(a) in full; or (b) completing and filing a Motion and Declaration in Support of Motion to Proceed IFP that complies with 28 U.S.C. § 1915(a)(1), (2) and S.D. Cal. CivLR 3.2(b); and 28 (3) DIRECTS the Clerk of the Court to provide Plaintiff with a Court-approved 1 “Motion and Declaration in Support of Motion to Proceed IFP” for his use and ||convenience. Should Plaintiff neither pay the $402 filing fee in full nor sufficiently complete and file the attached Motion and Declaration to Proceed IFP within 45 days, this 4 action will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), and || without further Order of the Court.

6 IT IS SO ORDERED.

7 || Dated: November 6, 2023 <6 Hon. Cathy Ann Bencivengo ? United States District Judge 4 oo