Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GERALD WILSON, Case No.: 3:25-cv-2839-JES-BLM CDCR # B93800, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO PAY vs. FILING FEES REQUIRED BY 14 28 U.S.C. § 1914(a) AND/OR FOR INSTITUTION FACILITY DENTAL 15 FAILURE TO PROPERLY MOVE DEP’T, JOHN DOE #1, JOHN DOE #2, TO PROCEED IN FORMA 16 DENTAL DEP’T, PAUPERIS PURSUANT TO 17 28 U.S.C. § 1915(a) Defendants. 18 19 20 Plaintiff Gerald Wilson, currently incarcerated at R.J. Donovan Correctional Facility 21 (“RJD”) and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. 22 § 1983. See ECF No. 1. Plaintiff alleges Defendants violated his Eighth Amendment rights 23 when they failed to provide him with adequate dental care. See id. As discussed below, the 24 action must be dismissed without prejudice. 25 I. FAILURE TO PAY FILING FEE OR SUBMIT MOTION TO PROCEED IFP 26 All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 $405. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 1 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 2 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 3 2007) (“Cervantes”); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, 4 a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in 5 “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. 6 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is 7 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 8 847 (9th Cir. 2002). 9 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 10 of fees to submit an affidavit that includes a statement of all assets possessed and which 11 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 12 2015) (emphasis added). In support of this affidavit, prisoners like Plaintiff must also 13 submit a “certified copy of the trust fund account statement (or institutional equivalent) for 14 . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). It is from the certified 16 trust account statement that the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly balance 18 in the account for the past six months, whichever is greater, unless he has no assets. See 19 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 20 prisoner then collects subsequent payments, assessed at 20% of the preceding month’s 21 income, in any month in which his account exceeds $10, and forwards those payments to 22 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 23 85‒86. 24 Plaintiff did not pay the filing fee required to commence a civil action when he filed 25 his Complaint, nor has he filed a Motion to Proceed IFP, which includes both the affidavit 26 required by 28 U.S.C. § 1915(a)(1) and the certified copies of his trust funds account 27 statements required by 28 U.S.C. § 1915(a)(2). While RJD has provided a copy of 28 Plaintiff’s trust account statement, see ECF No. 2, this accounting, unless accompanied by 1 a motion and affidavit submitted by Plaintiff, is insufficient. “The in forma pauperis statute 2 authorizes courts to allow ‘[1] the commencement, prosecution or defense of any suit, 3 action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and 4 costs or security therefor, by a person who [2] makes affidavit that he is [3] unable to pay 5 such costs or give security therefor.’” Rowland v. California Men’s Colony, Unit II Men’s 6 Advisory Council, 506 U.S. 194, 214 (1993) (quoting 28 U.S.C. § 1915(a)). “Section 7 1915(a) thus contemplates that the []person[] who is entitled to the benefits of the provision 8 will have three characteristics: He will have the capacity to sue or be sued, to make an 9 affidavit, and to be unable to pay court costs.” Id. “Such affidavit shall [also] state the 10 nature of the action, . . . and affiant’s belief that [he] is entitled to redress.” 28 U.S.C. 11 § 1915(a)(1). “When a claim of poverty is made under section 1915 ‘it is proper and indeed 12 essential for the supporting affidavits to state the facts as to affiant’s poverty with some 13 particularity, definiteness and certainty.’” United States v. McQuade, 647 F.2d 938, 940 14 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). 15 Therefore, unless Plaintiff either pays the filing fee “upfront,” Bruce, 577 U.S. at 86, 16 or files a properly supported Motion to Proceed IFP that includes an affidavit that meets 17 the requirements set out in 28 U.S.C. § 1915(a)(1), his case cannot proceed. See 28 U.S.C. 18 § 1914(a); Cervantes, 493 F.3d at 1051. 19 II. CONCLUSION AND ORDER 20 Accordingly, the Court: 21 (1) DISMISSES this action without prejudice based on Plaintiff’s failure to pay 22 the $405 civil filing and administrative fee required by 28 U.S.C. § 1914(a), and his failure 23 to properly move to proceed IFP pursuant to 28 U.S.C. § 1915(a). 24 (2) GRANTS Plaintiff forty-five (45) days leave from the date of this Order to 25 re-open his case by: (a) prepaying the entire $405 civil filing and administrative fee 26 required by 28 U.S.C. § 1914(a) in full; or (b) completing and filing a Motion and 27 Declaration in Support of Motion to Proceed IFP that complies with 28 U.S.C. 28 § 1915(a)(1), (2) and S.D. Cal. CivLR 3.2.b. l (3) DIRECTS the Clerk of the Court to provide Plaintiff with a Court-approved 2 ||form “Motion and Declaration in Support of Motion to Proceed IFP” for his use and 3 ||convenience. Should Plaintiff neither pay the $405 filing fee in full nor sufficiently 4 complete and file the attached Motion and Declaration to Proceed IFP within 45 days, this 5 || civil action will remained dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), 6 without further Order of the Court.! 7 IT ISSO ORDERED. 8 || Dated: March 16, 2026 9 Je a “4 A. 10 Honorable James E. Sunmons Jr. 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 Plaintiff is cautioned that if he chooses to re-open the case by either prepaying the full $405 civil 3 filing fee, or by submitting a properly supported Motion to Proceed IFP, his Complaint will be subject to an initial review and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) 24 |} and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full filing fee at once, or is granted IFP status and is obligated to pay the full filing fee in installments. See Lopez v. Smith, 25 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only 26 ||permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune); 27 || see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening 28 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.”).