Hammler v. Imada

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No.: 3:21-cv-0149-CAB-WVG CDCR #F-73072, 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 C. AMADA, D. PARAMO, COVELO, FAILING TO MOVE TO PROCEED 16 Defendants. IN FORMA PAUPERIS PURSUANT 17 TO 28 U.S.C. § 1915(a) 18 19 20 Plaintiff, Allen Hammler, proceeding pro se and currently incarcerated at 21 California State Prison, Corcoran, has filed a civil action pursuant to 42 U.S.C. § 1983. 22 (See Compl., ECF No. 1.) Plaintiff has not prepaid the $400 civil filing fee required by 28 23 U.S.C. § 1914(a), however, and has not 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 $402. 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 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 4 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a 5 prisoner, and even if he is granted leave to commence his suit IFP, he remains obligated 6 to pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 7 (9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. 8 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Plaintiff has not prepaid the $402 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. Section 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 $402 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 17 28 U.S.C. Section 1914(a) and Section 1915(a); and 18 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 19 filed to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) 20 complete and file a Motion to Proceed IFP which includes a certified copy of his trust 21 account statement for the 6-month period preceding the filing of his Complaint. See 28 22 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 23 / / / 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 28 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 In Forma Pauperis.” If Plaintiff fails to either prepay the $402 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 the fee 6 || requirements of 28 U.S.C. S § 1914(a) and without further Order of the Court. 7 IT IS SO ORDERED. 8 ||Dated: January 28, 2021 € □ 9 Hon. Cathy Ann Bencivengo 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3