Hurst v. Richardson

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PATRICK DORIAN HURST, Case No.: 3:22-cv-01467-GPC-MDD Booking #22722552, 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 ZACHARY RICHARDSON, San Diego FAILING TO MOVE TO PROCEED 16 Police Officer #1065, IN FORMA PAUPERIS 17 Defendant. PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 Plaintiff Patrick Dorian Hurst, proceeding pro se and while detained at the San Diego 21 County Sheriff’s Department Las Colinas Detention and Reentry Facility, in Santee, 22 California, filed this civil rights action pursuant to 42 U.S.C. § 1983, on September 26, 23 2022. See Compl., ECF No. 1. 24 Plaintiff claims a San Diego Police Officer violated his constitutional rights during 25 an April 2022 traffic stop that resulted in his arrest. Id. at 2‒5. He seeks injunctive relief 26 preventing further harassment, $200 million in general and punitive damages, and demands 27 a jury trial. Id. at 7. 28 / / / 1 I. Failure to Pay Filing Fee or Request IFP Status 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $402. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 7 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a 8 prisoner, and even if he is granted leave to commence his suit IFP, he remains obligated to 9 pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th 10 Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. 11 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Plaintiff has not prepaid the $402 in filing and administrative fees required to 13 commence this civil action; nor has he submitted a properly supported Motion to Proceed 14 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 15 § 1914(a); Andrews, 493 F.3d at 1051. 16 II. Conclusion and Order 17 Accordingly, the Court: 18 (1) DISMISSES this civil action sua sponte without prejudice based on 19 Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit a Motion 20 to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 21 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 22 to re-open his case by: (a) prepaying the entire $402 civil filing and administrative fee in 23 full; or (b) completing and filing a Motion to Proceed IFP which includes a certified copy 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 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 administrative fee does 28 1 |}of his San Diego County Sheriff's Department trust account statement report for the 6- 2 ||month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. 3 || Civ. L.R. 3.2(b). 4 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s 5 ||approved form “Motion and Declaration in Support of Motion to Proceed Jn Forma 6 || Pauperis.” But if Plaintiff fails to either prepay the $402 civil filing fee or complete and 7 ||submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 8 ||dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 9 requirements and without further Order of the Court.’ 10 IT IS SO ORDERED. 11 Dated: October 4, 2022 72 / C4 12 Hon. Gonzalo P. Curiel 13 United States District Judge 14 15 16 17 18 19 20 21 ||? Plaintiff is further cautioned that if he chooses to re-open the case by either prepaying the 99 full $402 civil filing fee, or by submitting a properly supported Motion to Proceed IFP, his Complaint will be subject to an initial review and may be dismissed sua sponte pursuant to 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 ||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.’’).