Unreported / Non-Citable
Background
Victor Francis Fiorelli, a pro se prisoner at Richard J. Donovan Correctional Facility, filed a civil rights complaint under 42 U.S.C. § 1983 against a defendant identified as Jane Doe, an RJDCF nurse. He alleges that she forced him to shower in a shower that was not compliant with the Americans with Disabilities Act. These are allegations only, and the court did not evaluate them.
The complaint arrived without the $405 civil filing and administrative fee required by 28 U.S.C. § 1914(a) and without a motion to proceed in forma pauperis (IFP) under 28 U.S.C. § 1915(a). The prison had separately furnished a copy of Fiorelli's trust account statement, docketed as ECF No. 2, but he had not filed his own motion or affidavit. The order therefore addressed only the threshold fee question, not the merits.
The Court’s Holding
Judge Cheeks dismissed the action without prejudice. The court explained that a civil plaintiff must pay the filing fee up front unless granted IFP status, and that a prisoner granted IFP status still owes the full fee in installments, even if the case is later dismissed. Section 1915(a) requires an affidavit listing assets and showing inability to pay, and prisoners must add a certified trust account statement covering the six months before the complaint. Citing Andrews v. Cervantes, Rowland, and McQuade, the court held that the prison-supplied statement, unaccompanied by a motion and affidavit from the plaintiff, was insufficient, so the case could not proceed.
The dismissal is not a ruling on the merits and is not with prejudice. The court gave Fiorelli 45 days from the date of the order, October 22, 2026, to reopen the case by either prepaying the full $405 or filing a Motion and Declaration to Proceed IFP that complies with § 1915(a)(1) and (2) and S.D. Cal. CivLR 3.2.b. The Clerk was directed to send him a court-approved IFP form. If he does neither within 45 days, the action remains dismissed without prejudice under § 1914(a), without further order of the court.
A footnote warns that if the case is reopened by either route, the complaint will undergo initial review and may be dismissed sua sponte under 28 U.S.C. § 1915A(b) and/or § 1915(e)(2)(B), whether he pays the fee at once or in installments.
Key Takeaways
- Paying the $405 fee in full or obtaining IFP status is a threshold requirement, and without one or the other a prisoner's civil rights case cannot proceed.
- A prisoner's IFP motion needs his own affidavit of assets and inability to pay plus a certified six-month trust account statement, and a statement sent by the prison alone does not suffice.
- The dismissal is without prejudice, and Fiorelli has 45 days to reopen the case by paying or filing a compliant motion, so the order is not a final judgment on his claims.
- If he does not act within 45 days, the case stays dismissed without prejudice without any further court order.
- Reopening the case does not guarantee the complaint will proceed, because it remains subject to initial screening and possible sua sponte dismissal.
Why It Matters
The order is a routine application of settled Ninth Circuit and Supreme Court authority, but it shows how a prisoner's paperwork lapse can stall a case before any court considers the merits. The court stressed that the requirement is personal to the litigant: documents assembled by prison officials do not replace the plaintiff's sworn showing of poverty, which must state facts with particularity, definiteness and certainty.
This is an unpublished district court order and carries no precedential weight. Nothing has been decided about whether the shower allegations state a claim or whether the Doe defendant can be identified. Those questions remain open and arise only if Fiorelli cures the deficiency within the deadline.