Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO REVELES, Case No.: 3:26-cv-2878-DMS-DEB CDCR # G-208797, 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 MANJAREES, OCHOA, SHELAND, A. 15 FAILURE TO PROPERLY MOVE GONZALEZ, TO PROCEED IN FORMA 16 PAUPERIS PURSUANT TO 17 Defendants. 28 U.S.C. § 1915(a) 18 19 20 Plaintiff Guillermo Reveles, currently incarcerated at R.J. Donovan Correctional 21 Facility (“RJD”) and proceeding pro se, has filed a civil rights complaint pursuant to 42 22 U.S.C. § 1983, alleging Defendants violated his rights under the Eighth and Fourteenth 23 Amendments. See ECF No. 1. He has also submitted a “Declaration” in which he states 24 RJD officials are “denying [him] documents to present to the Court.” ECF No. 3. As 25 discussed below, the action must be dismissed without prejudice. 26 I. FAILURE TO PAY FILING FEE OR SUBMIT MOTION TO PROCEED IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $405. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 4 2007) (“Cervantes”). However, a prisoner who is granted leave to proceed IFP remains 5 obligated to pay the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 6 U.S. 82, 84 (2016), and regardless of whether his action is ultimately dismissed. See 28 7 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 8 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 9 of fees to submit an affidavit that includes a statement of all assets possessed and which 10 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 11 2015) (emphasis added). In support of this affidavit, prisoners like Plaintiff must also 12 submit a “certified copy of the trust fund account statement (or institutional equivalent) for 13 . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 14 § 1915(a)(2). It is from the certified trust account statement that the Court assesses an initial 15 payment of 20% of (a) the average monthly deposits in the account for the past six months, 16 or (b) the average monthly balance in the account for the past six months, whichever is 17 greater, unless he has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 18 institution having custody of the prisoner then collects subsequent payments, assessed at 19 20% of the preceding month’s income, in any month in which his account exceeds $10, 20 and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 21 § 1915(b)(2); Bruce, 577 U.S. at 85‒86. 22 Plaintiff did not pay the filing fee required to commence a civil action when he filed 23 his Complaint, nor has he filed a Motion to Proceed IFP. Instead, Plaintiff has submitted a 24 “Declaration” in which he states, “institution policy is designed to interfere with Plaintiff’s 25 IFP motion and denying [sic] Plaintiff documents to present to the Court.” ECF No. 3. In 26 order to proceed IFP, a plaintiff must submit both the affidavit required by 28 U.S.C. 27 § 1915(a)(1) and the certified copies of his trust funds account statements required by 28 28 U.S.C. § 1915(a)(2). Here, while Plaintiff suggests the prison is denying him the necessary 1 documents to support an IFP motion, RJD has provided the Court with a certified copy of 2 Plaintiff’s trust account statement. See ECF No. 2. But this accounting must be 3 accompanied by an IFP motion and affidavit submitted by Plaintiff. 4 The Court declines to construe Plaintiff’s “Declaration,” ECF No. 3, as an IFP 5 motion or affidavit because it lacks any attestation regarding Plaintiff’s ability to pay the 6 filing fee. See id. “The in forma pauperis statute authorizes courts to allow ‘[1] the 7 commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, 8 or appeal therein, without prepayment of fees and costs or security therefor, by a person 9 who [2] makes affidavit that he is [3] unable to pay such costs or give security therefor.’” 10 Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 214 11 (1993) (quoting 28 U.S.C. § 1915(a)). “Section 1915(a) thus contemplates that the 12 []person[] who is entitled to the benefits of the provision will have three characteristics: He 13 will have the capacity to sue or be sued, to make an affidavit, and to be unable to pay court 14 costs.” Id. “When a claim of poverty is made under section 1915 ‘it is proper and indeed 15 essential for the supporting affidavits to state the facts as to affiant’s poverty with some 16 particularity, definiteness and certainty.’” United States v. McQuade, 647 F.2d 938, 940 17 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). 18 Therefore, unless Plaintiff either pays the filing fee “upfront,” Bruce, 577 U.S. at 86, 19 or files a Motion to Proceed IFP that includes an affidavit that meets the requirements set 20 out in 28 U.S.C. § 1915(a)(1),1 his case cannot proceed. See 28 U.S.C. § 1914(a); 21 Cervantes, 493 F.3d at 1051. 22 II. CONCLUSION AND ORDER 23 Accordingly, the Court: 24 (1) DISMISSES this action without prejudice based on Plaintiff’s failure to pay 25 the $405 civil filing and administrative fee required by 28 U.S.C. § 1914(a), and his failure 26 27 1 Because RJD has already submitted a copy of his trust account statement, Plaintiff need not submit 28 | properly move to proceed IFP pursuant to 28 U.S.C. § 1915(a). 2 (2) GRANTS Plaintiff forty-five (45) days leave from the date of this Order to 3 ||re-open his case by: (a) prepaying the entire $405 civil filing and administrative fee 4 ||required by 28 U.S.C. § 1914(a) in full; or (b) completing and filing a Motion and 5 ||Declaration in Support of Motion to Proceed IFP that complies with 28 U.S.C. 6 || § 1915(a)(1), (2) and S.D. Cal. CivLR 3.2.b. 7 (3) DIRECTS the Clerk of the Court to provide Plaintiff with a Court-approved 8 ||form “Motion and Declaration in Support of Motion to Proceed IFP” for his use and 9 ||convenience. Should Plaintiff neither pay the $405 filing fee in full nor sufficiently 10 || complete and file the attached Motion and Declaration to Proceed IFP within 45 days, this 11 action will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), and 12 || without further Order of the Court.’ 13 IT IS SO ORDERED. 14 || Dated: July 6, 2026 □ 15 hb Yn « 16 Hon. Dana M. Sabraw United States District Judge 17 18 19 20 21 22 || 23 ||? Plaintiff is cautioned that if he chooses to re-open the case by either prepaying the full $405 civil filing 24 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) and/or 28 U.S.C. 25 1915(€)(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, 203 F.3d 1122, 1126-27 (9th Cir. 26 || 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 seeks damages 27 || from defendants who are immune); see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 28 (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.”).