Shallowhorn v. Hopper

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALFRED EUGENE SHALLOWHORN, Case No.: 25-cv-0222-MMA-MMP CDCR #P-13049, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILURE TO PAY FILING 14 FEE REQUIRED BY 28 U.S.C.

15 § 1914(a) AND/OR FAILURE TO HOPPER, et al., MOVE TO PROCEED IN FORMA 16 Defendants. PAUPERIS PURSUANT TO 17 28 U.S.C. § 1915(a)

18 19 20 21 Alfred Eugene Shallowhorn (“Plaintiff”) is a state prisoner proceeding pro se with 22 a civil rights Complaint pursuant to 42 U.S.C. § 1983. Doc. No. 1. Plaintiff has not paid 23 the civil filing fee nor filed a motion to proceed in forma pauperis (“IFP”). 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 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 28 although the $55 administrative fee does not apply to persons granted leave to proceed 1 IFP. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 2 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). An action may proceed despite a 3 plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP 4 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th 5 Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if 6 Plaintiff is a prisoner, and even if he is granted leave to commence his suit IFP, he 7 remains obligated to pay the entire filing fee in “increments,” see Williams v. Paramo, 8 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 9 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 10 (9th Cir. 2002). 11 Plaintiff has not prepaid the $405 in filing and administrative fees required to 12 commence this civil action, nor has he submitted a motion to proceed IFP pursuant to 28 13 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); 14 Andrews, 493 F.3d at 1051. 15 II. CONCLUSION 16 Accordingly, the Court DISMISSES this civil action sua sponte without prejudice 17 based on Plaintiff’s failure to pay the $405 civil filing and administrative fee or submit a 18 motion to proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a). The Court 19 GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed to: 20 (a) prepay the entire $405 civil filing and administrative fee in full; or (b) complete and 21 file a motion to proceed IFP which includes a certified copy of his trust account statement 22 for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. 23 § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 24 The Court DIRECTS the Clerk of the Court to provide Plaintiff with this Court’s 25 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 26 Pauperis.” If Plaintiff fails to either pay the $405 civil filing fee or submit a properly 27 supported motion to proceed IFP within 45 days, this action will remain dismissed 28 without prejudice based solely on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 1 ||requirement and without further Order of the Court.' 2 IT IS SO ORDERED. 3 Dated: February 21, 2025 4 Mikel □□ {hipllr 5 HON. MICHAEL M. ANELLO 6 United States District Judge 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full $405 civil filing 24 fee, or submitting a 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 U.S.C. 95 1915(e)(2)(B), regardless of whether he pays the full $405 filing fee at once, or is granted IFP status and is obligated to pay the full filing fee in installments. See Lopez v. Smith, 203 F.3d 1122, 1126-27 26 || (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, or 27 || seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621 F.3d 1002, 1004 28 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity”).