Hairston v. Juarez

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 KEVIN TYRONE IZAL HAIRSTON, Case No.: 22-cv-01801-BAS-WVG CDCR No. BF-2040, 11 ORDER DISMISSING CIVIL Plaintiff, 12 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY 13 FILING FEE REQUIRED 14 BY 28 U.S.C. § 1914(a) AND/OR JUAREZ, Correctional Officer, FAILING TO MOVE TO PROCEED 15 Defendant. IN FORMA PAUPERIS 16 PURSUANT TO 28 U.S.C. § 1915(a) 17 18 19 Plaintiff Kevin Tyrone Izal Hairston proceeding pro se and currently housed at 20 California State Prison, Sacramento, has filed a civil rights action pursuant to 42 U.S.C. 21 § 1983. (See Compl., ECF No. 1.) 22 All parties instituting any civil action, suit or proceeding in a district court of the 23 United States, except an application for writ of habeas corpus, must pay a filing fee of 24 $402. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 25 26 27 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 28 1 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 2 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 3 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 4 prisoner, and even if he is granted leave to commence his suit IFP, he remains obligated to 5 pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th 6 Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. 7 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 8 Plaintiff has not prepaid the $402 in filing and administrative fees required to 9 commence this civil action, nor has he submitted a properly supported Motion to Proceed 10 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 11 § 1914(a); Andrews, 493 F.3d at 1051. 12 Accordingly, the Court: 13 (1) DISMISSES this civil action sua sponte without prejudice based on 14 Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit a Motion 15 to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 16 (2) GRANTS Plaintiff until January 13, 2023 to: (a) prepay the entire $402 civil 17 filing and administrative fee in full or (b) complete and file a Motion to Proceed IFP which 18 includes a certified copy of his trust account statement for the 6-month period preceding 19 the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); CivLR 3.2(b). 20 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s 21 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 22 Pauperis.” But if Plaintiff fails to either prepay the $402 civil filing fee or complete and 23 submit the enclosed Motion to Proceed IFP on or before January 13, 2023, this action will 24 25 26 27 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does 28 1 ||remain dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s 2 || fee requirements.” 3 IT IS SO ORDERED. 4 N 5 || DATED: November 28, 2022 ( itl A (Hophta. 6 How. Cynthia Bashant 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”).