Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONALD A. WIMBERLY, Case No.: 25-cv-03293-AJB-JLB CDCR #BV-1136, 12 ORDER: Plaintiff, 13 vs. (1) DISMISSING CIVIL ACTION 14 WITHOUT PREJUDICE FOR 15 FAILING TO PAY FILING FEE J. BONILLA, et al., REQUIRED BY 28 U.S.C. § 1914(a) 16 Defendants. AND/OR FAILING TO MOVE TO 17 PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a), 18 19 and 20 (2) DENYING MOTION FOR 21 APPOINTMENT OF COUNSEL AS MOOT 22 23 24 25 Plaintiff Ronald A. Wimberly is a state prisoner proceeding pro se with a civil rights 26 Complaint pursuant to 42 U.S.C. § 1983, accompanied by a Motion to appoint counsel. 27 (Doc. Nos. 1–2.) Plaintiff has not paid the civil filing fee nor filed a motion to proceed in 28 forma pauperis (“IFP”). 1 I. Failure to Pay Filing Fee or Request IFP Status 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 5 although the $55 administrative fee does not apply to persons granted leave to proceed IFP. 6 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 7 Schedule, § 14 (eff. Dec. 1, 2023)). An action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a prisoner, and even 11 if he is granted leave to commence his suit IFP, he remains obligated to pay the entire filing 12 fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 13 regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); 14 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 15 Plaintiff has not prepaid the $405 in filing and administrative fees required to 16 commence this civil action, nor has he submitted a motion to proceed IFP pursuant to 28 17 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); 18 Andrews, 493 F.3d at 1051. 19 II. Motion to Appoint Counsel 20 Plaintiff seeks appointment of counsel because he cannot afford an attorney, his 21 incarceration will limit his ability to prosecute this case, and the issues are complex. (Doc. 22 No. 2.) Plaintiff’s Motion is DENIED as moot without prejudice to Plaintiff resubmitting 23 the motion after he has either paid the filing fee or been granted leave to proceed IFP. 24 III. Conclusion and Order 25 Accordingly, the Court: 26 (1) DISMISSES this civil action sua sponte without prejudice based on 27 Plaintiff’s failure to pay the $405 civil filing and administrative fee or to submit a motion 28 to proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); 1 (2) DENIES as moot Plaintiff's Motion to Appoint Counsel (Doc. No. 2), and 2 (3) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 3 || to: (a) prepay the entire $405 civil filing and administrative fee in full; or (b) complete and 4 || file a motion to proceed IFP which includes a certified copy of his trust account statement 5 || for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 6 ||S.D. Cal. Civ. L.R. 3.2(b). The Clerk of the Court is DIRECTED to provide Plaintiff with 7 Court’s approved form “Motion and Declaration in Support of Motion to Proceed Jn 8 || Forma Pauperis.” If Plaintiff fails to either pay the $405 civil filing fee or submit a properly 9 || supported motion to proceed IFP within 45 days, this action will remain dismissed without 10 || prejudice based solely on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirement and 11 || without further Order of the Court.! 12 IT IS SO ORDERED. 13 Dated: December 11, 2025 14 Hon. Anthony J 15 United States District Judge 16 17 18 19 20 21 ||' 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 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 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, 6 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. 28 § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.”’)