Smith v. William

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BENYAMIN SMITH, Case No.: 3:20-CV-01983-TWR-MDD Booking # 209-301-98, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY 14 FILING FEE REQUIRED 15 BY 28 U.S.C. § 1914(a) AND/OR KROUT WILLIAM, et al., FAILING TO MOVE TO PROCEED 16 Defendants. IN FORMA PAUPERIS 17 PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 21 Plaintiff Benyamin Smith (“Plaintiff”), a pretrial detainee at the San Diego Central 22 Jail, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. Section 1983. (See 23 ECF No. 1, Compl.) 24 I. Failure to Pay Filing Fee or Request In Forma Pauperis (“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). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 3 pursuant to 28 U.S.C. Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 4 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 5 Plaintiff is a prisoner, and even if he is granted leave to commence his suit IFP, he 6 remains obligated to pay the entire filing fee in “increments,” see Williams v. Paramo, 7 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 8 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 9 (9th Cir. 2002). 10 Plaintiff has not prepaid the $400 in filing and administrative fees required to 11 commence this civil action. Although Plaintiff has filed a Motion for Leave to Proceed 12 IFP, (see ECF No. 2), he has not attached “a certified copy of the trust account statement 13 (or institutional equivalent) for [Plaintiff] for the 6-month period immediately preceding 14 the filing of the complaint . . . obtained from the appropriate official of each prison at 15 which the prisoner is or was confined” as required by 28 U.S.C. Section 1915(a)(2). 16 Plaintiff asserts in a document attached to his Complaint that he has “been told by all the 17 sheriffs here at this central jail [I] will not get a copy of any trust account & [I] will not 18 get anything certifi[e]d by this jail d[ue] to covid #19 . . . .” (See Compl. at 5.) Aside 19 from this assertion, the Court is not aware of any COVID-19 restrictions at the Central 20 Jail or any other aspect of the pandemic that would prevent the responsible official from 21 printing and certifying Plaintiff’s trust account statements pursuant to 28 U.S.C. Section 22 1915(a)(2). Moreover, during the COVID-19 pandemic, the Court has reviewed several 23 cases from other facilities operated by the San Diego County Sheriff’s Department in 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 28 1 which plaintiffs have obtained trust account statements and certifications from the 2 appropriate officials. See, e.g., Mondragon v. Cnty. of San Diego, No. 3:20-cv-01574- 3 DMS-AHG, 2020 WL 5064310, at *1 (S.D. Cal. Aug. 26, 2020); Keavney v. Cnty. of San 4 Diego., 3:19-cv-01947-AJB-BGS, 2020 WL 2745240, at *2 (S.D. Cal. May 27, 2020). 5 Without trust account statements, the Court cannot determine whether Plaintiff is 6 entitled to proceed IFP or assess what, if any, initial partial filing fee may be due. See 28 7 U.S.C. § 1915(a), (b)(1). As a result, Plaintiff’s case cannot yet proceed. See 28 U.S.C. 8 § 1914(a); Andrews, 493 F.3d at 1051. 9 II. Conclusion and Order 10 For the reasons set forth above, the Court hereby: 11 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 12 $400 civil filing and administrative fee or to submit a properly supported Motion to 13 Proceed IFP pursuant to 28 U.S.C. Section 1914(a) and Section 1915(a); and 14 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 15 filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) 16 complete and file a properly supported Motion to Proceed IFP. See 28 U.S.C. 17 § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 18 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 19 with this Court’s approved form “Motion and Declaration in Support of Motion to 20 Proceed In Forma Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or 21 complete and submit a properly supported Motion to Proceed IFP within 45 days, this 22 action will remain dismissed without prejudice based on Plaintiff’s failure to satisfy the 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 || fee requirements of 28 U.S.C. Section 1914(a) and without further Order of the Court. 2 IT IS SO ORDERED. 3 || Dated: October 29, 2020 —— 4 | 89) (3 re 5 Honorable Todd W. Robinson 6 United States District Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4