Favor v. Gray

Opinion

6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA BRANDON ALEXANDER FAVOR, Case No.: 20-cv-00396-BAS-LL 11 CDCR #G-60488, 12 Plaintiff, ORDER DISMISSING CIVIL ACTION FOR FAILING TO PREPAY FILING 13 v. FEES REQUIRED BY 28 U.S.C. § 1914(a) OR FILE A MOTION TO 14 ETTA MAE GRAY, et al., PROCEED IN FORMA PAUPERIS 15 Defendants. 16 17 Brandon Alexander Favor (“Plaintiff”), currently incarcerated at the California 18 Correctional Institution located in Tehachapi, California and proceeding pro se, has filed 19 this civil rights action (“Compl.”) pursuant to 42 U.S.C. § 1983. (See ECF No. 1.) Plaintiff 20 did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time he submitted 21 his Complaint, nor has he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 22 to 28 U.S.C. § 1915(a). 23 I. Failure to Pay Filing Fee or Request IFP Status 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 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 27 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 1 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 2 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Section 3 1915(a)(2) requires all persons seeking to proceed without full prepayment of fees to file 4 an affidavit that includes a statement of all assets possessed and demonstrates an inability 5 to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). 6 Plaintiff is further cautioned that even if he files an IFP Motion and affidavit in 7 compliance with § 1915(a)(2), he will nevertheless remain obligated to pay the entire fee 8 in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless 9 of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 10 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” 11 who at the time of filing is “incarcerated or detained in any facility who is accused of, 12 convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 13 terms or conditions of parole, probation, pretrial release, or diversionary program.” 28 14 U.S.C. § 1915(h); Taylor, 281 F.3d at 847. 15 Plaintiff must also submit a “certified copy of [his] trust fund account statement (or 16 institutional equivalent) . . . for the 6-month period immediately preceding the filing of the 17 complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court 18 will assess an initial payment of 20% of (a) the average monthly deposits in Plaintiff’s 19 account for the past six months, or (b) the average monthly balance in the account for the 20 past six months, whichever is greater, unless he has no assets. See 28 U.S.C. § 1915(b)(1), 21 (4); Taylor, 281 F.3d at 850. After, the Court will direct the institution having custody to 22 collect subsequent payments, assessed at 20% of the preceding month’s income, in any 23 month in which his account exceeds $10, and forward them to the Court until the entire 24 filing fee is paid. See 28 U.S.C. § 1915(b)(2). 25 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 26 commence a civil action, nor filed a properly supported Motion to Proceed IFP pursuant to 27 June. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 U.S.C. § 1915(a), his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews v. 2 || Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 3 Conclusion and Order 4 Accordingly, the Court: 5 (1) DISMISSES this civil action without prejudice based on Plaintiffs failure to 6 || pay the $400 civil filing and administrative fee or to submit a Motion to Proceed IFP 7 || pursuant to 28 U.S.C. §§ 1914(a) and 1915(a). 8 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 9 || to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete and 10 || file a Motion to Proceed IFP which complies with 28 U.S.C. § 1915(a)(2) and S.D. Cal. 11 || CivLR 3.2(b). 12 (3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 13 |}approved form “Motion and Declaration in Support of Motion to Proceed In Forma 14 || Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or fully complete and 15 |}submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 16 ||dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 17 ||requirement and without further Order of the Court. 18 IT IS SO ORDERED. 19 / / 20 || DATED: March 23, 2020 (yitlig (Bohtsrk 21 United States District Judge 22 23 24 25 26 27 28 2