Dunsmore v. State of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, Case No.: 3:20-cv-0406-AJB WVG Inmate Booking No. 19777041, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO vs. PREPAY FILING FEES REQUIRED 14 BY 28 U.S.C. § 1914(a) OR FILE A STATE OF CALIFORNIA; SAN DIEGO 15 MOTION TO PROCEED IN FORMA COUNTY; SAN DIEGO SHERIFF’S PAUPERIS 16 DEP’T; DEP’T OF CORRECTIONS; GORE; XAVIER BECCERA, 17 Defendants. 18 19 Darryl Dunsmore (“Plaintiff”), currently housed at the San Diego Central Jail 20 located in San Diego, California and proceeding pro se, has filed this civil rights action 21 (“Compl.”) pursuant to 42 U.S.C. § 1983. See ECF No. 1. 22 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the 23 time he submitted his Complaint, nor has he filed a Motion to Proceed In Forma Pauperis 24 (“IFP”) pursuant to 28 U.S.C. § 1915(a). 25 I. Failure to Pay Filing Fee or Request IFP Status 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 1 $400. See 28 U.S.C. § 1914(a). 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 1915(a)(2) 4 requires all persons seeking to proceed without full prepayment of fees to file an affidavit 5 that includes a statement of all assets possessed and demonstrates an inability to pay. See 6 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,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless 10 of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 11 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” who 12 at the time of filing is “incarcerated or detained in any facility who is accused of, convicted 13 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 14 conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. 15 § 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 (a) the average monthly deposits in Plaintiff’s 20 account for the past six months, or (b) the average monthly balance in the account for the 21 past six months, whichever is greater, unless he has no assets. See 28 U.S.C. § 1915(b)(1), 22 (4); Taylor, 281 F.3d at 850. After, the Court will direct the institution having custody to 23 collect subsequent payments, assessed at 20% of the preceding month’s income, in any 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 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 28 1 ||month in which his account exceeds $10, and forward them to the Court until the entire 2 || filing fee is paid. See 28 U.S.C. § 1915(b)(2). 3 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 4 ||commence a civil action, nor filed a properly supported Motion to Proceed /FP pursuant 5 ||to 28 U.S.C. § 1915(a), his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 6 F.3d at 1051. 7 Conclusion and Order 8 Accordingly, the Court: 9 (1) DISMISSES this civil action without prejudice based on Plaintiff's failure to 10 the $400 civil filing and administrative fee or to submit a Motion to Proceed /FP 11 || pursuant to 28 U.S.C. §§ 1914(a) and 1915(a). 12 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 13 || to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete and 14 || file a Motion to Proceed JFP which complies with 28 U.S.C. § 1915(a)(2) and S.D. Cal. 15 || CivLR 3.2(b). 16 (3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 17 |}approved form “Motion and Declaration in Support of Motion to Proceed In Forma 18 || Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or fully complete and 19 ||}submit the enclosed Motion to Proceed JFP within 45 days, this action will remain 20 dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 21 ||requirement and without further Order of the Court. 22 IT IS SO ORDERED. 23 24 Dated: March 5, 2020 © 25 Hon. Anthony J. attaglia 26 United States District Judge 27 28 3 □□