Nelson v. Solicitor General of the United States

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JAMES DENERICK NELSON, JR.,
Petitioner,
vs.
SOLICITOR GENERAL OF THE UNITED
STATES,
Respondent.
Case No.: 26-cv-0180-AJB-KSC
ORDER: (1) DENYING MOTION
TO PROCEED IN FORMA
PAUPERIS, AND
(2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEES
REQUIRED BY 28 U.S.C. § 1914(a)
(Doc. No. 2)
James Denerick Nelson, Jr. (“Petitioner”), a state prisoner pro se, has filed a Petition
for Writ of Mandamus. Doc. No. 1. In lieu of paying the filing fee required by 28 U.S.C.
§ 1914(a), Petitioner has also filed a Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a). (Doc. No. 2.) For the reasons discussed below, the Court
denies Petitioner’s IFP motion and dismisses the action without prejudice.
I. 	IFP MOTION
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
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$405.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire
fee at the time of filing only if the court grants the Petitioner leave to proceed IFP pursuant
to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an]
IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the
fee[s] [a]re paid.”).
To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of
all assets [they] possess[,]” as well as “a “certified copy of the[ir] 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)(1), (2); Andrews v. King, 398 F.3d 1113,
1119 (9th Cir. 2005). Using this financial information, the court “assess[es] and when funds
exist, collect[s], … an initial partial filing fee,” which is “calculated based on ‘the average
monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the
prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly
payments of 20 percent of the preceding month’s income credited to the prisoner’s
account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). In short, while
prisoners may qualify to proceed IFP without having to pay the full statutory filing upfront,
they remain obligated to pay the full amount due in monthly payments. See Bruce v.
Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281
F.3d 844, 847 (9th Cir. 2002).
Here, Petitioner’s IFP Motion is incomplete because he has not included a certified
copy of his trust account statement for the 6-month period immediately preceding the filing
of his civil action. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Without a certified
trust account statement, the Court is unable to assess whether any initial partial filing fee
1 	In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc.
Fee Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 administrative fee does not apply to
persons granted leave to proceed IFP. Id.
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may be required to initiate the prosecution of Petitioner’s case. See 28 U.S.C. § 1915(b)(1).
II. 	CONCLUSION AND ORDER
Accordingly, the Court:
(1) 	DENIES Petitioner’s Motion to Proceed IFP (Doc. No. 2) and DISMISSES
the action without prejudice. See 28 U.S.C. §§ 1915(a) & 1914(a).
(2) 	GRANTS Petitioner forty-five (45) days from the date this Order to re-open
her case by either: (a) prepaying the entire $405 civil filing and administrative fee in one
lump-sum; or (b) filing a renewed Motion to Proceed IFP, which includes a prison
certificate, signed by a trust accounting official attesting as to her trust account balances
and deposits and/or a certified copy of her Inmate Statement Report for the 6-month period
preceding the filing of her Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal.
CivLR 3.2(b).
If Petitioner chooses not to comply with this Order by either paying the $405 civil
filing fee and administrative fee in full by or submitting a properly supported IFP Motion
within forty-five (45) days, this case will remain dismissed without prejudice and without
further order of the Court based on Petitioner’s failure to comply with 28 U.S.C. § 1914(a).
(3) 	DIRECTS to provide Petitioner with a Court-approved form “Motion and
Declaration in Support of Motion to Proceed In Forma Pauperis.”
IT IS SO ORDERED.
Dated: March 11, 2026
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