Bonilla v. Battaglia

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-00769-LAB-MDD STEVEN WAYNE BONILLA, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE v. FOR FAILING TO PAY 14 FILING FEE REQUIRED JUDGE ANTHONY BATTAGLIA, 15 BY 28 U.S.C. § 1914(a) AND/OR Defendant. FAILING TO MOVE TO PROCEED 16 IN FORMA PAUPERIS 17 PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 STEVEN WAYNE BONILLA (“Plaintiff”), currently incarcerated at San Quentin 21 State Prison located in San Quentin, California, and proceeding pro se, has filed a civil 22 rights action (ECF No. 1). 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 / / / 27 / / / 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. 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 In 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 24, 2020 ( dug A f ZunlV 9 arry Alan Burns 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27