Turley v. Lezano

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MACEY E. TURLEY, Case No.: 3:22-cv-1719-GPC-AGS CDCR #BF-8128 12 ORDER DISMISSING CIVIL 13 ACTION WITHOUT PREJUDICE Plaintiff, FOR FAILING TO PAY 14 vs. FILING FEE REQUIRED 15 BY 28 U.S.C. § 1914(a) AND/OR FAILING TO MOVE TO 16 LEZANO, Correctional Officer, PROCEED IN FORMA PAUPERIS 17 Defendant. PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 21 Macey E. Turley (“Plaintiff” of “Turley”), a state inmate currently incarcerated at 22 California State Prison, Corcoran and proceeding pro se, has filed a civil rights complaint 23 pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff has not prepaid the $402 24 civil filing fee required by 28 U.S.C. § 1914(a), however, and has not filed a Motion to 25 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 26 I. Failure to Pay Filing Fee or Request IFP Status 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 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 § 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 the Plaintiff is a prisoner, and even 5 if 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 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 For the reasons set forth above, the Court hereby: 15 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 16 $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 17 28 U.S.C. §§ 1914(a) and 1915(a); and 18 (2) GRANTS Plaintiff thirty (30) days leave from the date this Order is filed to: 19 (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and file 20 a Motion to Proceed IFP which includes a certified copy of his trust account statement for 21 the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. 22 Cal. CivLR 3.2(b). 23 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 24 with this Court’s approved form “Motion and Declaration in Support of Motion to Proceed 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 27 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 not apply to persons granted leave to proceed 28 1 Forma Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or complete 2 submit the enclosed Motion to Proceed IFP within 30 days, this action will remain 3 || dismissed without prejudice based on Plaintiff’s failure to satisfy 28 U.S.C. § 1914(a)’s fee 4 requirements and without further Order of the Court. 5 IT IS SO ORDERED. 6 || Dated: November 14, 2022 2 sale Od 7 Hon. Gonzalo P. Curiel 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28