Roberts v. California State Prison Sacramento

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID ROBERTS, Case No.: 3:22-cv-01598-CAB-JLB CDCR #BA-0958, 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 CALIFORNIA STATE PRISON; FAILING TO MOVE TO PROCEED 16 ACUNA, Correctional Officer; IN FORMA PAUPERIS CARUSO, Correctional Sergeant, 17 PURSUANT TO Defendants. 28 U.S.C. § 1915(a) 18 19 20 Plaintiff David Roberts, proceeding pro se and while housed at the California State 21 Prison, located in Represa, California, filed this civil rights action pursuant to 42 U.S.C. 22 § 1983 on October 14, 2022. See Compl., ECF No. 1. 23 I. Failure to Pay Filing Fee or Request 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 27 28 1 $402. See 28 U.S.C. § 1914(a). 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 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 4 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a 5 prisoner, and even if he is granted leave to commence his suit IFP, he remains obligated to 6 pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th 7 Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. 8 § 1915(b)(1) & (2); 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 properly supported Motion to Proceed 11 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 12 § 1914(a); 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 re-open his case by: (a) prepaying the entire $402 civil filing and administrative fee in 20 full; or (b) completing and filing a Motion to Proceed IFP which includes a certified copy 21 of his CDCR trust account statement report for the 6-month period preceding the filing of 22 his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 23 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 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 Jn Forma 3 || Pauperis.” But if Plaintiff fails to either prepay the $402 civil filing fee or complete and 4 ||submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 5 ||dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 6 requirements and without further Order of the Court. 7 IT IS SO ORDERED. 8 9 || Dated: October 24, 2022 € ZL 10 Hon. Cathy Ann Bencivengo United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3