Hucker v. Hill

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JASON HUCKER, Case No.: 25-cv-02533-RBM-BLM CDCR # P-73941 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 [Doc. 2]; J. HILL, Warden, et al., 16 Defendants. (3) DISMISSING CIVIL ACTION 17 WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEES; 18 AND 19 (4) DENYING MOTION FOR 20 APPOINTMENT OF COUNSEL 21 AS MOOT [Doc. 3] 22 23 Plaintiff Jason Hucker, a state prisoner proceeding pro se, has filed a civil rights 24 Complaint pursuant to 42 U.S.C. § 1983 along with a Motion to Proceed In Forma Pauperis 25 (“IFP Application”) and a Motion for Appointment of Counsel. (Docs. 1–3.) 26 I. MOTION TO PROCEED IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 2 although the administrative fee does not apply to persons granted leave to proceed IFP. 3 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 4 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 7 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of 8 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 9 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 10 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 11 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 12 for the past six months, or (b) the average monthly balance in the account for the past six 13 months, whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C. 14 § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP 15 must pay any remaining balance in “increments” or “installments,” regardless of whether 16 their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)–(2); Bruce, 577 U.S. at 84. 17 Plaintiff’s IFP Application does not include a trust fund account statement. (See 18 Doc. 2.) The Court cannot grant his IFP Application without a trust fund account statement 19 containing financial information for the 6-month period immediately preceding the filing 20 of his Complaint. See Andrews, 398 F.3d at 1119 (“prisoners must demonstrate that they 21 are not able to pay the filing fee with an affidavit and submission of their prison trust 22 account records.”) (citing 28 U.S.C. § 1915(a)(1)–(2)). 23 The IFP Application (Doc. 2) is DENIED. This action is DISMISSED without 24 prejudice based on Plaintiff’s failure to pay the filing fee or to submit a properly supported 25 motion to proceed IFP pursuant to 28 U.S.C. §§ 1914(a) & 1915(a), and Plaintiff’s Motion 26 for Appointment of Counsel (Doc. 3) is DENIED as moot. 27 /// 28 /// l I. MOTION FOR APPOINTMENT OF COUNSEL 2 Since the Court must dismiss the action, Plaintiff's motion for appointment of 3 || counsel (Doc. 4) is DENIED as moot, without prejudice to Plaintiff making a renewed 4 ||request should the case be reopened and should he satisfy the criteria for discretionary 5 || appointment of counsel in a civil case. 6 It. CONCLUSION AND ORDER 7 Accordingly, the Court: 8 (1) DENIES Plaintiff's IFP Application without prejudice (Doc. 2.) 9 (2) DISMISSES this civil action without prejudice based on Plaintiff's failure to 10 the civil filing and administrative fee or to submit a properly supported motion to 11 || proceed IFP pursuant to 28 U.S.C. §§ 1914(a) & 1915(a). 12 (3) DENIES Plaintiff's Motion for Appointment of Counsel as moot. (Doc. 3.) 13 (4) GRANTS Plaintiff until February 13, 2026 to: (a) prepay the entire $405 14 || civil filing and administrative fee in full; or (b) complete and file a properly supported 15 |} motion to proceed IFP which includes a certified copy of his prison trust account statement 16 || for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 17 ||S.D. Cal. CivLR 3.2(b). If Plaintiff fails to either pay the $405 civil filing fee or submit a 18 || properly supported motion to proceed IFP by February 13, 2026, this action will remain 19 || dismissed without prejudice based solely on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 20 || requirement and without further Order of the Court. 21 IT IS SO ORDERED 22 ||Dated: January 28, 2026 Fe Le ; ? L é > 23 HON. RUTH BERMUDEZ MONTENEGRO 24 UNITED STATES DISTRICT JUDGE 25 26 27 28 NE □□ DDAAT DTN: