Jones v. Oceanside Police Department

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WAYNE E. JONES, Case No.: 23-cv-00607-MMA-WVG CDCR No. BU-7712, 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 OCEANSIDE POLICE DEPARTMENT; FAILING TO MOVE TO PROCEED 16 VISTA DETENTION FACILITY; IN FORMA PAUPERIS SAN DIEGO CENTRAL JAIL; 17 PURSUANT TO GEORGE BAILEY DETENTION 28 U.S.C. § 1915(a) 18 FACILITY, 19 Defendants. 20 21 Plaintiff Wayne E. Jones (“Jones” or “Plaintiff”) proceeding pro se and currently 22 incarcerated at High Desert State Prison (“HDSP”), has filed a civil rights complaint 23 pursuant to 42 U.S.C. § 1983. See Doc. No. 1 (“Compl.”). While his pleading is difficult 24 to decipher, it appears Jones seeks to hold various San Diego County Sheriff’s 25 Department jail and detention facilities, as well as the Oceanside Police Department, 26 liable for harassing and discriminating against him based on “gender, religion, sex, color, 27 contracting, ethnicity, and disability” while he was held in their custody on unspecified 28 occasions from 2020 through 2022. Id. at 1, 5. Jones further claims to have been denied 1 effective assistance of counsel during his state court criminal proceedings. Id. at 5‒10. 2 He seeks both “release from custody pending conclusion of the appeal of writs 3 proceedings,” as well as $6 million on general and punitive damages. Id. at 10, 12. 4 I. FAILURE TO PAY FILING FEE OR REQUEST IFP STATUS 5 All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $402. See 28 U.S.C. § 1914(a).1 An action may proceed despite a failure to pay the 8 entire fee only if the plaintiff is granted leave to commence his suit in forma pauperis 9 (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 10 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 11 plaintiff is a prisoner, and even if he is granted leave to proceed IFP, he remains obligated 12 to pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 13 (9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. 14 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 15 Jones has not paid the $402 in filing and administrative fees required to commence 16 a civil action and has not submitted a properly supported Motion to Proceed IFP pursuant 17 to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); 18 Andrews, 493 F.3d at 1051. 19 II. CONCLUSION 20 Accordingly, the Court DISMISSES this civil action sua sponte without prejudice 21 based on Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit 22 a Motion to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a) and GRANTS 23 Plaintiff forty-five (45) days leave from the date this Order is filed to re-open the case 24 by: (a) paying the entire $402 civil filing and administrative fee in full; or (b) completing 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 27 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 not apply to persons granted leave to 28 | |} and filing a Motion to Proceed IFP which includes a certified copy of his HDSP trust 2 ||account statement for the 6-month period preceding the filing of his Complaint. See 28 3 U.S.C. § 1915(a)(2); S.D. Cal. CivLR3.2(b). 4 The Clerk of the Court is DIRECTED the Clerk of the Court to provide Plaintiff 5 || with this Court’s approved form “Motion and Declaration in Support of Motion to 6 Proceed Jn Forma Pauperis.” But if Plaintiff fails to either prepay the $402 civil filing 7 || fee or complete and submit the enclosed Motion to Proceed IFP within 45 days, this 8 |} action will remain dismissed without prejudice based on his failure to satisfy 28 U.S.C. 9 |1§ 1914(a)’s fee requirements.” 10 IT IS SO ORDERED. 11 Dated: May 4, 2023 12 “ Mikel Ub {hiohls MA 13 HON. MICHAEL M. ANELLO 14 United States District Judge 15 16 17 18 19 20 21 22 23 ||? Plaintiff is cautioned that if he chooses proceed further by either prepaying the full $402 civil filing 24 fee, or submitting a properly supported Motion to Proceed IFP, his Complaint will be screened pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B) regardless of whether he has paid the full 95 filing fee at once, or is granted leave to proceed IFP 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) (noting that 28 26 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, or seeks damages from defendants who are 27 immune); see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar 28 screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.”).