Shea v. Hernandez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:20-cv-00708-AJB-LL JOHN M. SHEA 12 Inmate Booking No. 19770319, ORDER DISMISSING CIVIL 13 ACTION WITHOUT PREJUDICE Plaintiff, FOR FAILING TO PAY 14 v. FILING FEE REQUIRED 15 BY 28 U.S.C. § 1914(a) AND/OR HERNANDEZ; NORTHROP; FAILING TO MOVE TO PROCEED 16 GUZMAN, IN FORMA PAUPERIS 17 Defendants. PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 JOHN M. SHEA (“Plaintiff”), currently housed at the San Diego Central Jail 21 located in San Diego, California, and proceeding pro se, initially filed a civil rights action 22 in the Eastern District of New York on April 14, 2020. (ECF No. 1). On April 14, 2020, 23 United States District Judge Eric Komitee transferred this action to this Court on the 24 grounds that venue was improper in the Eastern District of New York. (ECF No. 2.) 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 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 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a prisoner, and 5 even if he is granted leave to commence his suit IFP, he remains obligated to pay the 6 entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 7 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) 8 & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Plaintiff has not prepaid the $400 in filing and administrative fees required to 10 commence this civil action, nor has he submitted a properly supported Motion to Proceed 11 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 12 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 13 II. Conclusion and Order 14 For the reasons set forth above, the Court hereby: 15 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 16 $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 17 28 U.S.C. §§ 1914(a) and 1915(a); and 18 (2) GRANTS Plaintiff thirty (30) days leave from the date this Order is filed 19 to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete 20 and file a Motion to Proceed IFP which includes a certified copy of his trust account 21 statement for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. 22 § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 23 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. 26 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to 27 proceed IFP. Id. 1 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 2 || with this Court’s approved form “Motion and Declaration in Support of Motion to 3 Proceed Jn Forma Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or 4 ||complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will 5 ||remain dismissed without prejudice based on Plaintiff’s failure to satisfy 28 U.S.C. 6 ||§ 1914(a)’s fee requirements and without further Order of the Court. 7 IT IS SO ORDERED. 8 Dated: April 23, 2020 C La vez : □ ? Hon, Anthony J.@attaglia 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27