Villalobos v. Allemby

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAMON D. VILLALOBOS, Case No.: 22-CV-0784-TWR (KSC) CDCR No. F-34154, 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 ALLEMBY; VALENCIA; FAILING TO MOVE TO PROCEED 16 RAMIREZ; ACAYAN, IN FORMA PAUPERIS 17 Defendants. PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 Plaintiff Ramon Villalobos, currently incarcerated at the Richard J. Donovan 21 Correctional Facility (“RJD”) located in San Diego, California, is proceeding pro se in the 22 instant civil rights action pursuant to 42 U.S.C. § 1983. (See ECF No. 1.) 23 I. Failure to Pay Filing Fee or Request to Proceed in forma pauperis 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 $402, consisting of a $350 statutory fee plus an additional administrative fee of $52, 27 although the $52 administrative fee does not apply to persons granted leave to proceed in 28 forma pauperis. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District 1 Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). An action may proceed despite a 2 plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed in forma 3 pauperis pursuant to 28 U.S.C. § 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 5 Plaintiff is a prisoner, and even if he is granted leave to commence his suit in forma 6 pauperis, he remains obligated to pay the entire filing fee in “increments,” see Williams v. 7 Paramo, 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 (9th 9 Cir. 2002). 10 Plaintiff has not prepaid the $402 in filing and administrative fees required to 11 commence this civil action, nor has he submitted a Motion to Proceed in forma pauperis 12 pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. § 13 1914(a); Andrews, 493 F.3d at 1051. 14 II. Conclusion and Order 15 Accordingly, the Court: 16 (1) DISMISSES this civil action sua sponte without prejudice based on 17 Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit a Motion 18 to Proceed in forma pauperis pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 19 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 20 to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 21 file a Motion to Proceed in forma pauperis which includes a certified copy of his trust 22 account statement for the 6-month period preceding the filing of his Complaint. See 28 23 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s 2 ||approved form “Motion and Declaration in Support of Motion to Proceed in forma 3 pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or complete and submit 4 ||the enclosed Motion to Proceed in forma pauperis within 45 days, this action will be 5 ||dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 6 || requirements. ! 7 IT IS SO ORDERED. 8 Dated: June 21, 2022 f ) 9 J 5) | (ore 10 Honorable Todd W. Robinson United States District Judge 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 99 full $402 civil filing fee, or submitting a properly supported Motion to Proceed in forma pauperis, his Complaint will be screened before service and may be dismissed sua sponte 23 || pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full $402 filing fee at once, or is granted in forma pauperis status and is obligated to pay the full filing fee in installments. See Lopez v. Smith, 203 F.3d 1122, 25 || 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, 6 malicious, fails to state a claim, or seeks damages from defendants who are immune); see 27 || also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening 28 required by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.”’)