Rodriguez v. Newsom

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 PEDRO RODRIGUEZ, Case No.: 21cv1762-CAB (JLB) BOOKING #14745493, 13 ORDER DISMISSING CIVIL Plaintiffs, 14 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY 15 FILING FEE REQUIRED GOVERNOR GAVIN NEWSOM, et al., 16 BY 28 U.S.C. § 1914(a) AND/OR Defendants. FAILING TO MOVE TO PROCEED 17 IN FORMA PAUPERIS 18 PURSUANT TO 28 U.S.C. § 1915(a) 19 20 Plaintiff Pedro Rodriguez, a person detained at the San Diego County Central Jail 21 and proceeding pro se, has filed a civil right complaint pursuant to 42 U.S.C. § 1983. (ECF 22 No. 1.) Plaintiff has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a) 23 and has not filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 24 § 1915(a). 25 I. Failure to Pay Filing Fee or Request IFP Status 26 All parties instituting any civil action in a district court of the United States, except 27 a petition for writ of habeas corpus, must pay a filing fee of $402, and the action may 28 proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted 1 pursuant to 28 U.S.C. § 1915(a). See 28 U.S.C. § 1914(a); Andrews v. Cervantes, 493 2 F.3d 1047, 1051 (9th Cir. 2007). Section 1915(a)(2) requires prisoners seeking leave to 3 proceed IFP to submit a “certified copy of the trust fund account statement (or institutional 4 equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 5 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005); 28 U.S.C. 6 § 1915(h) (defining a “prisoner” as “any person” who at the time of filing is “incarcerated 7 or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated 8 delinquent for, violations of criminal law or the terms or conditions of parole, probation, 9 pretrial release, or diversionary program.”) From the certified trust account statement, the 10 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 11 for the past six months, or (b) the average monthly balance in the account for the past six 12 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1) 13 & (4). The institution collects subsequent payments, assessed at 20% of the preceding 14 month’s income, in any month in which the account exceeds $10, and forwards those 15 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 16 Plaintiff remains obligated to pay the entire fee in monthly installments regardless of 17 whether their action is ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 18 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 19 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 20 commence a civil action, nor filed a Motion to Proceed IFP pursuant to 28 U.S.C. 21 § 1915(a), his case cannot proceed at this time. See 28 U.S.C. § 1914(a); Andrews, 493 22 F.3d at 1051. 23 / / / 24 / / / 25 26 27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial 28 1 Conclusion and Order 2 Accordingly, the Court: 3 (1) DISMISSES this action without prejudice based on Plaintiff’s failure to pay 4 || the filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. $§ 1914(a) and 1915(a). 5 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 6 || to: (a) prepay the entire civil filing fee in full; or (b) complete and file a Motion to Proceed 7 ||IFP. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 8 (3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 9 ||approved form “Motion and Declaration in Support of Motion to Proceed In Forma 10 || Pauperis.’” If Plaintiff fails to either prepay the civil filing fee or fully complete and submit 11 enclosed Motion to Proceed IFP within 45 days, this action will remain dismissed 12 || without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirement and 13 || without further Order of the Court. 14 IT IS SO ORDERED. 15 ||Dated: October 14, 2021 € Z 16 Hon. Cathy Ann Bencivengo 17 United States District Judge 18 19 20 21 22 || 24 |I2 Plaintiff is cautioned that if he chooses to proceed further by submitting a properly 25 || Supported Motion to Proceed IFP, his Complaint will be screened before service and may 5 be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b). See Lopez v. Smith, 203 F.3d 122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits 27 ||but requires” the court to sua sponte dismiss an in forma pauperis complaint that is 28 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune).