Turner v. Metropolitan Transit System

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BRYAN TURNER, JR, Case No.: 22cv1318-JLS-AHG Booking Number 22726041, 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 METROPOLITAN TRANSIT SYSTEM; FAILING TO MOVE TO PROCEED 16 SAN DIEGO TROLLEY; SDTC, IN FORMA PAUPERIS 17 Defendants. PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 Plaintiff David Bryan Turner, Jr. (“Plaintiff”), currently housed in the San Diego 21 Central Jail (“SDCJ”) located in San Diego, California, is proceeding pro se in this civil 22 action. (ECF No. 1.) 23 I. Failure to Pay Filing Fee or Request In Forma Pauperis (“IFP”) Status 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 IFP. 28 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 1 Schedule, § 14 (eff. Dec. 1, 2020)). 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 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if Plaintiff is a prisoner, and even if 5 he is granted leave to commence his suit IFP, he remains obligated to pay the entire filing 6 fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 7 regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); 8 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 Motion to Proceed IFP pursuant to 28 11 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); 12 Andrews, 493 F.3d at 1051. 13 II. Conclusion and Order 14 Accordingly, the Court: 15 (1) DISMISSES this civil action sua sponte without prejudice based on 16 Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit a Motion 17 to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 18 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 19 to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 20 file a Motion to Proceed IFP which includes a certified copy of his trust account statement 21 for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 22 S.D. Cal. Civ. L.R. 3.2(b). 23 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s 24 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 25 Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or complete and submit 26 / / / 27 / / / 28 / / / 1 ||the enclosed Motion to Proceed IFP within 45 days, this action will be dismissed without 2 || prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirements.! 3 IT IS SO ORDERED. 4 Dated: September 6, 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 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 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 || F.3d 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.’’)