Jones v. San Diego County

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 WAYNE ELIJAH JONES, Case No.: 3:23-cv-02241-CAB-AHG CDCR #BU7712, 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 SAN DIEGO COUNTY, et al., FAILING TO MOVE TO PROCEED 15 Defendants. IN FORMA PAUPERIS 16 PURSUANT TO 28 U.S.C. § 1915(a) 17 18 19 Plaintiff Wayne Elijah Jones, who is proceeding pro se and is currently housed at 20 Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, has 21 filed a civil rights action pursuant to 42 U.S.C. § 1983. See ECF No. 1, “Compl.” He has 22 not prepaid the civil filing fee required by 28 U.S.C. § 1914(a), and although the Court has 23 received a trust account statement from RJD, he has not filed a Motion to Proceed In Forma 24 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 $405. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee, however, 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). Section 1915(a)(2) requires all 5 persons seeking to proceed without full prepayment of fees to file an affidavit that includes 6 a statement of all assets possessed and demonstrates an inability to pay. See Escobedo v. 7 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In support of this affidavit, the Prison 8 Litigation Reform Act (“PLRA”) also requires prisoners to submit a “certified copy of the 9 trust fund account statement (or institutional equivalent) for . . . the 6-month period 10 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 11 King, 398 F.3d 1113, 1119 (9th Cir. 2005). 12 Plaintiff has not prepaid the $405 in filing and administrative fees required to 13 commence this civil action, nor has he submitted a properly supported Motion to Proceed 14 IFP pursuant to 28 U.S.C. § 1915(a). Although Plaintiff’s trust account statement was 15 submitted to the Court by RJD, he has not submitted the required affidavit stating what 16 assets he possesses which would demonstrate an inability to pay. See Escobedo, 787 F.3d 17 at 1234. Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 18 F.3d at 1051.2 19 / / / 20 / / / 21 / / / 22 23 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 24 fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 25 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted leave to proceed IFP. Id. 26 2 Plaintiff is cautioned that the PLRA requires that all prisoners who proceed IFP to pay 27 the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016), and regardless of whether their action is ultimately dismissed. See 28 U.S.C. 28 1 Conclusion and Order 2 Accordingly, the Court: 3 (1) DISMISSES this civil action sua sponte without prejudice based on A || Plaintiffs failure to pay the $405 civil filing and administrative fee or to submit a Motion 5 || to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 6 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 7 || to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 8 || file a properly supported Motion to Proceed IFP. See 28 U.S.C. § 1915(a)(2); S.D. Cal. 9 || Civ. L.R. 3.2(b). 10 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s 11 |}approved form “Motion and Declaration in Support of Motion to Proceed In Forma 12 || Pauperis.”? 13 IT IS SO ORDERED. 14 || Dated: December 21, 2023 € □ 15 Hon. Cathy Ann Bencivengo 16 United States District Judge 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 54 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 5 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 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.”).