Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE MORENO, Case No.: 3:26-cv-4279-AJB-VET 12 Plaintiff, ORDER DISMISSING CIVIL 13 vs. ACTION FOR FAILURE TO PAY FILING FEES REQUIRED BY 14 28 U.S.C. § 1914(a) AND/OR FOR 15 GLOBAL TEL LINK (GTL)/VIAPATH FAILURE TO PROPERLY MOVE TECHNOLOGIES, TO PROCEED IN FORMA 16 PAUPERIS PURSUANT TO 17 Defendant. 28 U.S.C. § 1915(a) 18 19 20 Plaintiff Jose Moreno, 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 Doc. No. 1.) As discussed below, the action is dismissed 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) (emphasis added). In support of this affidavit, 8 prisoners like Plaintiff must also submit a “certified copy of the trust fund account 9 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 10 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 11 (9th Cir. 2005). 12 Here, Plaintiff did not pay the filing fee required to commence a civil action when 13 he filed his Complaint, nor has he filed a Motion to Proceed IFP, which includes both the 14 affidavit required by 28 U.S.C. § 1915(a)(1) and the certified copy of his trust account 15 statements required by 28 U.S.C. § 1915(a)(2). While both RJD and Plaintiff have provided 16 copies of Plaintiff’s trust account statement, (see Doc. Nos. 2; 3), this accounting, unless 17 accompanied by an IFP motion and affidavit submitted by Plaintiff, is insufficient. “The in 18 forma pauperis statute authorizes courts to allow ‘[1] the commencement, prosecution or 19 defense of any suit, action or proceeding, civil or criminal, or appeal therein, without 20 prepayment of fees and costs or security therefor, by a person who [2] makes affidavit that 21 he is [3] unable to pay such costs or give security therefor.’” Rowland v. Cal. Men’s Colony, 22 Unit II Men’s Advisory Council, 506 U.S. 194, 214 (1993) (quoting 28 U.S.C. § 1915(a)). 23 “Section 1915(a) thus contemplates that the []person[] who is entitled to the benefits of the 24 provision will have three characteristics: He will have the capacity to sue or be sued, to 25 make an affidavit, and to be unable to pay court costs.” Id. “Such affidavit shall [also] state 26 the nature of the action, . . . and affiant’s belief that [he] is entitled to redress.” 28 U.S.C. 27 § 1915(a)(1). “When a claim of poverty is made under section 1915 ‘it is proper and indeed 28 essential for the supporting affidavits to state the facts as to affiant’s poverty with some | || particularity, definiteness and certainty.”” United States v. McQuade, 647 F.2d 938, 940 2 || (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th 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 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 Plaintiffs failure to pay 10 || the $405 civil filing and administrative fee required by 28 U.S.C. § 1914(a), and his failure 11 || to 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 |/re-open his case by: (a) prepaying the entire $405 civil filing and administrative fee 14 ||required by 28 U.S.C. § 1914(a) in full; or (b) completing and filing a Motion and 15 ||Declaration in Support of Motion to Proceed IFP that complies with 28 U.S.C. 16 1915(a)(1), (2) and S.D. Cal. CivLR 3.2.b. 17 (3) DIRECTS the Clerk of the Court to provide Plaintiff with a Court-approved 18 |/form “Motion and Declaration in Support of Motion to Proceed IFP” for his use and 19 |/convenience. Should Plaintiff neither pay the $405 filing fee in full nor sufficiently 20 || complete and file the attached Motion and Declaration to Proceed IFP within 45 days, this 21 |} civil action will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), and 22 || without further Order of the Court. 23 IT IS SO ORDERED. 24 || Dated: September 16, 2026 © 25 Hon. Anthony J. attaglia 26 United States District Judge 27 28 3 oe