Mora v. Montgomery

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VICTOR MORA, Case No.: 3:22-cv-01431-RSH-JLB CDCR No. T-88372, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILURE TO PAY FILING 14 FEE 15 L. MONTGOMERY, et al., 16 Defendants. 17 18 19 20 21 Plaintiff Victor Mora, who is currently incarcerated at Calipatria State Prison located 22 in Imperial, California, has filed a civil rights action pursuant to 42 U.S.C. § 1983. See ECF 23 No. 1. For the reasons discussed below, the Court dismisses this action for Plaintiff’s failure 24 to pay the required filing free or request to proceed in forma pauperis (“IFP”). 25 I. Failure to Pay Filing Fee or Request IFP Status 26 All parties instituting any civil action, suit, or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 1 $402, consisting of a $350 statutory fee plus an additional administrative fee of $52. See 2 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 3 Schedule, § 14 (eff. Dec. 1, 2020)). An action may proceed despite a plaintiff’s failure to 4 prepay the entire fee only if he is granted leave to proceed IFP under 28 U.S.C. § 1915(a). 5 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 6 F.3d 1176, 1177 (9th Cir. 1999). However, even if Plaintiff is granted leave to commence 7 his suit IFP, he remains obligated to pay the entire filing fee in “increments,” see Williams 8 v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 9 dismissed. See 28 U.S.C. § 1915(b)(1)–(2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 10 Cir. 2002) (stating that “all prisoners who file IFP civil actions must pay the full amount 11 of the filing fee”). 12 Here, Plaintiff has not prepaid the $402 in filing and administrative fees required to 13 commence this civil action, nor has he submitted a motion to proceed IFP pursuant to 28 14 U.S.C. § 1915(a). Therefore, his case cannot proceed. See 28 U.S.C. § 1914(a); Andrews, 15 493 F.3d at 1051. 16 II. Conclusion 17 Accordingly, the Court 18 (1) DISMISSES this civil action without prejudice based on Plaintiff’s failure to 19 pay the $402 civil filing and administrative fee or to submit a motion to proceed IFP. 20 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 21 to either (a) prepay the entire $402 civil filing and administrative fee in full; OR (b) 22 complete and file a motion to proceed IFP which includes a certified copy of his trust 23 account statement for the 6-month period preceding the filing of his Complaint. See 28 24 U.S.C. § 1915(a)(2); Civ. L.R. 3.2(b). 25 Plaintiff is cautioned that if he chooses to proceed by either prepaying the full $402 26 27 28 1 || civil filing and administrative fee, or submitting a properly supported motion to proceed 2 ||IFP, his Complaint will be screened before service and may be dismissed sua sponte 3 || pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether 4 ||he pays the full $402 filing fee at once, or is granted IFP status and is obligated to pay the 5 || fee in installments. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 6 || (noting that 28 U.S.C. § 1915(e) “not only permits but requires” a court to dismiss an IFP 7 ||complaint that is frivolous, malicious, fails to state a claim, or seeks damages from 8 || defendants who are immune); see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 9 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all complaints filed 10 || by prisoners “seek[ing] redress from a governmental entity or officer or employee of a 11 || governmental entity’). 12 The Clerk of the Court is DIRECTED to provide Plaintiff the Court’s approved 13 || form “Motion and Declaration in Support of Motion to Proceed Jn Forma Pauperis,” along 14 || with a copy of this Order. If Plaintiff fails to either prepay the $402 civil filing and 15 administrative fee or submit the enclosed motion to proceed IFP within 45 days, this action 16 || will be dismissed without prejudice. 17 IT IS SO ORDERED. 18 19 || Dated: October 21, 2022 Le, Lut C Lae 20 on. Robert S. Huie 1 United States District Judge 22 23 24 25 26 27 28 3 ee