Martinez v. Gonzales

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUSTIN MARTINEZ, Case No.: 24-CV-409 JLS (BGS) Booking #23745931, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILURE TO PAY FILING 14 FEE REQUIRED BY 28 U.S.C.

15 § 1914(a) F. GONZALES, SAN DIEGO COUNTY 16 SHERIFF’S DEP’T COUNTY JAIL (ECF No. 1) 17 MEDICAL DEP’T, S.D. JAIL MEDICAL TEAM, 18 Defendants. 19 20 Plaintiff Justin Martinez, currently detained at Vista Detention Facility in San Diego 21 County, California, is proceeding pro se in this case pursuant to 42 U.S.C. § 1983.1 See 22 ECF No. 1. 23 / / / 24 25 26 1 Plaintiff’s Complaint is on a form for civil actions against federal actors pursuant to Biven v. Six Unknown Agents of Federal Narcotics Bureau, 403 U.S. 388 (1971). Because Plaintiff is suing only state 27 and county actors and is detained in a county facility, however, the Court liberally construes Plaintiff’s Complaint as a civil action pursuant to 42 U.S.C. § 1983. See Hartman v. Moore, 547 U.S. 250, 254, 255 28 1 DISCUSSION 2 All parties instituting any civil action, suit, or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $405.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 6 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 7 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who 8 is granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or 9 “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 10 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is ultimately 11 dismissed, see 28 U.S.C. § 1915(b)(1)–(2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 12 2002). 13 Plaintiff has not prepaid the $405 in filing and administrative fees required to 14 commence this civil action, nor has he submitted a properly supported motion to proceed 15 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 16 § 1914(a); Andrews, 493 F.3d at 1051. 17 CONCLUSION 18 In light of the foregoing, the Court: 19 (1) DISMISSES this action without prejudice based on Plaintiff’s failure to pay 20 the $405 civil filing and administrative fee required by 28 U.S.C. § 1914(a), and his failure 21 to properly move to proceed IFP pursuant to 28 U.S.C. § 1915(a); 22 (2) GRANTS Plaintiff forty-five (45) days leave from the date of this Order to 23 re-open his case by: (a) prepaying the entire $405 civil filing and administrative fee 24 required by 28 U.S.C. § 1914(a) in full; or (b) completing and filing a Motion and 25 26 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 27 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 administrative fee does not apply to persons granted leave to proceed 28 1 ||Declaration in Support of Motion to Proceed IFP that complies with 28 U.S.C. 2 1915(a)(1), (2) and S.D. Cal. CivLR 3.2(b); and 3 (3) DIRECTS the Clerk of the Court to provide Plaintiff with a Court-approved 4 ||form “Motion and Declaration in Support of Motion to Proceed IFP” for his use and 5 ||convenience. Should Plaintiff neither pay the $405 filing fee in full nor sufficiently 6 || complete and file the attached Motion and Declaration to Proceed IFP within 45 days, this 7 action will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), and 8 || without further Order of the Court. 9 IT IS SO ORDERED. 10 ||Dated: March 4, 2024 . tt 11 pee Janis L. Sammartino D United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3