Scally v. Velasquez

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 TONY SCALLY, Case No.: 22-CV-140 JLS (MDD) CDCR No. G-67776, 11 ORDER DISMISSING CIVIL Plaintiff, 12 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY 13 FILING FEE REQUIRED 14 BY 28 U.S.C. § 1914(a) AND/OR LIEUTENANT J. VELASQUEZ; FAILING TO MOVE TO PROCEED 15 LIEUTENANT R. SOLORIO; IN FORMA PAUPERIS V. FREEMAN, 16 PURSUANT TO Defendants. 28 U.S.C. § 1915(a) 17 18 19 Plaintiff Tony Scally, proceeding pro se and currently housed at Calipatria State 20 Prison located in Calipatria, California, has filed this civil rights action pursuant to 42 21 U.S.C. § 1983. See ECF No. 1, “Compl.” 22 I. Failure to Pay Filing Fee or Request IFP Status 23 All parties instituting any civil action, suit or proceeding in a district court of the 24 United States, except an application for writ of habeas corpus, must pay a filing fee of 25 $402. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 26 27 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 28 1 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 2 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 3 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 4 prisoner, and even if he is granted leave to commence his suit IFP, he remains obligated to 5 pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th 6 Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. 7 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 8 Plaintiff has not prepaid the $402 in filing and administrative fees required to 9 commence this civil action, nor has he submitted a properly supported Motion to Proceed 10 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 11 § 1914(a); Andrews, 493 F.3d at 1051. 12 II. Conclusion and Order 13 Accordingly, the Court: 14 (1) DISMISSES this civil action sua sponte without prejudice based on 15 Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit a Motion 16 to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 17 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 18 to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 19 file a Motion to Proceed IFP, which includes a certified copy of his trust account statement 20 for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 21 S.D. Cal. Civ. L.R. 3.2(b). 22 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s 23 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 24 Pauperis.” But if Plaintiff fails to either prepay the $402 civil filing fee or complete and 25 /// 26 27 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does 28 1 ||submit the enclosed Motion to Proceed IFP within 45 days, this action will be dismissed 2 || without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirements.” 3 IT IS SO ORDERED. 4 ||Dated: February 7, 2022 tt 5 on. Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full 99 $402 civil filing fee, or submitting a properly supported Motion to Proceed IFP, his Complaint will be screened before service and may be dismissed sua sponte pursuant to 28 23 || U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the 54 full $402 filing fee at once, or is granted IFP status and is obligated to pay the full filing fee in installments. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 25 (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte 5 dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, 6 or seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621 27 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. 28 § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.”).