Carroll v. Albright

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABONILICO LAMAR CARROLL, Case No.: 25cv0522-BTM (MSB) Booking #24753928, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY 14 FILING FEE REQUIRED 15 BY 28 U.S.C. § 1914(a) AND/OR BRYAN ALBRIGHT, et al., FAILING TO MOVE TO PROCEED 16 Defendants. IN FORMA PAUPERIS 17 PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 Abonilico Lamar Carroll is incarcerated at the San Diego Central Jail and proceeding 21 pro se with a civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Plaintiff 22 has not paid the civil filing fee nor filed a motion to proceed in forma pauperis (“IFP”). 23 I. Failure to Pay Filing Fee or Request IFP Status 24 All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 27 although the $55 administrative fee does not apply to persons granted leave to proceed IFP. 28 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 1 Schedule, § 14 (eff. Dec. 1, 2023)). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if Plaintiff is a prisoner, and even if 5 he is granted leave to commence his suit IFP, he remains obligated to pay the entire filing 6 fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 7 regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); 8 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Plaintiff has not prepaid the $405 in filing and administrative fees required to 10 commence this civil action, nor has he submitted a motion to proceed IFP pursuant to 28 11 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); 12 Andrews, 493 F.3d at 1051. 13 II. Conclusion and Order 14 Accordingly, the Court: 15 (1) DISMISSES this civil action sua sponte without prejudice based on 16 Plaintiff’s failure to pay the $405 civil filing and administrative fee or to submit a motion 17 to proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 18 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 19 to: (a) prepay the entire $405 civil filing and administrative fee in full; or (b) complete and 20 file a motion to proceed IFP which includes a certified copy of his trust account statement 21 for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 22 S.D. Cal. Civ. L.R. 3.2(b). 23 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s 24 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 25 Pauperis.” If Plaintiff fails to either pay the $405 civil filing fee or submit a properly 26 supported motion to proceed IFP within 45 days, this action will remain dismissed without 27 / / / 28 / / / 1 prejudice based solely on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirement and 2 without further Order of the Court.1 3 IT IS SO ORDERED. 4 5 Dated: April 1, 2025 6 Hon. Barry Ted Moskowitz United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full $405 civil filing fee, or submitting a properly supported Motion to Proceed IFP, his 22 Complaint will be screened before service and may be dismissed sua sponte pursuant to 28 23 U.S.C. § 1915A(b) and/or 28 U.S.C. § 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 24 fee in installments. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 25 (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, 26 or seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621 27 F.3d 1002, 1004 (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 28