Carroll v. California Department of Corrections

Opinion

7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ABONILICO LAMAR CARROLL, Case No.: 19-cv-02126-BAS-KSC 11 Booking No. 19749688, 12 ORDER DISMISSING CIVIL Plaintiff, ACTION FOR FAILING TO 13 vs. PREPAY FILING FEES REQUIRED 14 BY 28 U.S.C. § 1914(a) OR FILE CALIFORNIA DEPARTMENT OF A MOTION TO PROCEED IN 15 CORRECTIONS, et al., FORMA PAUPERIS 16 Defendants. 17 18 Abonilico Lamar Carroll (“Plaintiff”), currently housed at the San Diego Central Jail 19 (“SDCJ”) located in San Diego, California and proceeding pro se, filed this civil rights 20 action (“Compl.”) pursuant to 42 U.S.C. § 1983. (See ECF No. 1.) Plaintiff did not prepay 21 the civil filing fee required by 28 U.S.C. § 1914(a) at the time he submitted his Complaint, 22 nor has he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 23 § 1915(a). 24 I. Failure to Pay Filing Fee or Request IFP Status 25 All parties instituting any civil action, suit or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 28 1 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Section 4 1915(a)(2) requires all persons seeking to proceed without full prepayment of fees to file 5 an affidavit that includes a statement of all assets possessed and demonstrates an inability 6 to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). 7 Plaintiff is further cautioned that even if he files an IFP Motion and affidavit in 8 compliance with § 1915(a)(2), he will nevertheless remain obligated to pay the entire fee 9 in “increments,” regardless of whether his case is ultimately dismissed. See 28 U.S.C. 10 § 1915(b)(1) & (2); see also Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015); 11 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). A “prisoner” is defined as “any 12 person” who at the time of filing is “incarcerated or detained in any facility who is accused 13 of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or 14 the terms or conditions of parole, probation, pretrial release, or diversionary program.” 28 15 U.S.C. § 1915(h); Taylor, 281 F.3d at 847. 16 Plaintiff must also submit a “certified copy of [his] trust fund account statement (or 17 institutional equivalent) . . . for the 6-month period immediately preceding the filing of the 18 complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court 19 will assess an initial payment of 20% of either the average monthly deposits in Plaintiff’s 20 account for the past six months, or the average monthly balance in the account for the past 21 six months, whichever is greater, unless he has no assets. See 28 U.S.C. § 1915(b)(1), (4); 22 Taylor, 281 F.3d at 850. The Court will then direct the institution having custody of 23 Plaintiff to collect subsequent payments, assessed at 20% of the preceding month’s income, 24 in any month in which his account exceeds $10, and forward them to the Court until the 25 entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 2 ||commence a civil action, nor filed a properly supported Motion to Proceed IFP pursuant to 3 1/28 U.S.C. § 1915(a), his case cannot proceed. See 28 U.S.C. § 1914(a); Andrews v. 4 || Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 5 Conclusion and Order 6 Accordingly, the Court: 7 (1) DISMISSES this civil action without prejudice based on Plaintiff’s failure to 8 || pay the $400 civil filing and administrative fee or to submit a Motion to Proceed IFP 9 || pursuant to 28 U.S.C. §§ 1914(a) and 1915(a). 10 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 11 || to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete and 12 || file a Motion to Proceed IFP which complies with 28 U.S.C. § 1915(a)(2) and Civil Local 13 |] Rule 3.2(b) for the Southern District of California. 14 (3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 15 ||}approved form “Motion and Declaration in Support of Motion to Proceed In Forma 16 || Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or fully complete and 17 |}submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 18 ||dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 19 || requirement and without further Order of the Court. 20 IT IS SO ORDERED. 21 f □ / □□ 22 || DATED: November 18, 2019 (yitlg (yshan □ 23 United States District Judge 24 25 26 27 28