Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DESEAN NELSON, Case No.: 3:26-cv-3869-CAB-GC 12 Plaintiff, ORDER DISMISSING WITHOUT 13 vs. PREJUDICE CIVIL ACTION FOR FAILURE TO PAY FILING FEES 14 REQUIRED BY 28 U.S.C. § 1914(a) 15 JEFF MCCOMBER, CDCR Secretary, et AND/OR FOR FAILURE TO al., PROPERLY MOVE TO PROCEED 16 IN FORMA PAUPERIS PURSUANT 17 Defendants. TO 28 U.S.C. § 1915(a) 18 19 Plaintiff Desean Nelson, currently incarcerated at R.J. Donovan Correctional 20 Facility (“RJD”) and proceeding pro se, has filed a civil rights complaint pursuant to 21 42 U.S.C. § 1983. [See Doc. No. 1.] As discussed below, the action is DISMISSED 22 WITHOUT PREJUDICE. 23 FAILURE TO SATISFY FILING FEE REQUIREMENT 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. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 27 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 28 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 1 2007) (“Cervantes”). However, a prisoner who is granted leave to proceed IFP remains 2 obligated to pay the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 3 U.S. 82, 84 (2016), and regardless of whether his action is ultimately dismissed. See 28 4 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 5 Plaintiffs seeking to proceed without full prepayment of fees must submit an 6 affidavit that includes a statement of all assets possessed and which demonstrates an 7 inability to pay. See 28 U.S.C. § 1915(a)(1). In support of this affidavit, prisoners like 8 Plaintiff must also submit a “certified copy of the trust fund account statement (or 9 institutional equivalent) for . . . the 6-month period immediately preceding the filing of the 10 complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). 11 Here, Plaintiff did not pay the filing fee required to commence a civil action when 12 he filed his Complaint, nor has he filed a Motion to Proceed IFP which includes both the 13 affidavit required by 28 U.S.C. § 1915(a)(1) and the certified copies of his trust funds 14 account statements required by 28 U.S.C. § 1915(a)(2). While both RJD and Plaintiff have 15 provided copies of Plaintiff’s trust account statement, [see Doc. Nos. 2–3], this accounting, 16 unless accompanied by an IFP motion and affidavit submitted by Plaintiff, is insufficient. 17 “The in forma pauperis statute authorizes courts to allow ‘[1] the commencement, 18 prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, 19 without prepayment of fees and costs or security therefor, by a person who [2] makes 20 affidavit that he is [3] unable to pay such costs or give security therefor.’” Rowland v. Cal. 21 Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 214 (1993) (quoting 28 22 U.S.C. § 1915(a)). “Section 1915(a) thus contemplates that the []person[] who is entitled 23 to the benefits of the provision will have three characteristics: He will have the capacity to 24 sue or be sued, to make an affidavit, and to be unable to pay court costs.” Id. “Such affidavit 25 shall [also] state the nature of the action, . . . and affiant’s belief that [he] is entitled to 26 redress.” 28 U.S.C. § 1915(a)(1). “When a claim of poverty is made under section 1915 27 ‘it is proper and indeed essential for the supporting affidavits to state the facts as to affiant’s 28 poverty with some particularity, definiteness and certainty.’” United States v. McQuade, 1 || 647 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 2 Cir. 1960)). 3 Therefore, unless Plaintiff either pays the filing fee “upfront,” Bruce, 577 U.S. at 86, 4 files a properly supported Motion to Proceed IFP that includes an affidavit that meets 5 || the requirements set out in 28 U.S.C. § 1915(a)(1), his case cannot proceed. See 28 U.S.C. 6 ||§ 1914(a); Cervantes, 493 F.3d at 1051. 7 CONCLUSION AND ORDER 8 Accordingly, the Court: 9 (1) DISMISSES this action without prejudice based on Plaintiff's failure to pay 10 || the $405 civil filing and administrative fee required by 28 U.S.C. § 1914(a), and his failure 11 properly move to proceed IFP pursuant to 28 U.S.C. § 1915(a). 12 (2) GRANTS Plaintiff forty-five (45) days leave from the date of this Order to 13 either (a) prepay the entire $405 civil filing and administrative fee required by 28 U.S.C. 14 1914(a) in full or (b) complete and file a Motion and Declaration in Support of Motion 15 || to Proceed IFP that complies with 28 U.S.C. § 1915(a)(1), (2) and S.D. Cal. CivLR 3.2.b. 16 (3) DIRECTS the Clerk of the Court to provide Plaintiff with a Court-approved 17 ||form “Motion and Declaration in Support of Motion to Proceed IFP” for his use and 18 |}convenience. Should Plaintiff neither pay the $405 filing fee in full nor sufficiently 19 ||complete and file the attached Motion and Declaration to Proceed IFP within 45 days, this 20 || civil action will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a) and 21 Clerk of the Court shall close the case accordingly without further Order of the Court. 22 IT IS SO ORDERED. 23 Dated: September 9, 2026 & 24 Hon. Cathy Ann Bencivengo 25 United States District Judge 26 27 28 3