Jabbar v. County of San Diego ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WALI DAVID JABBAR, Case No.: 3:20-cv-00065-JAH-NLS Booking #19735287, 12 ORDER DISMISSING CIVIL Plaintiffs, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY 14 FILING FEE REQUIRED COUNTY OF SAN DIEGO, et al., 15 BY 28 U.S.C. § 1914(a) AND/OR Defendants. FAILING TO MOVE TO PROCEED 16 IN FORMA PAUPERIS 17 PURSUANT TO 28 U.S.C. § 1915(a) 18 19 Plaintiff Wali David Jabbar, while incarcerated at the San Diego County Sheriff 20 Department’s George F. Bailey Detention Facility (“GBDF”), and proceeding pro se, has 21 filed a civil right complaint pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. 22 Plaintiff alleges the County of San Diego, Sheriff Gore, and Sheriff’s Department 23 Captain Buchanan have caused him to develop a bacterial skin disease by failing to 24 properly decontaminate the hair clippers used by GBDF barbers. Id. at 3. He seeks 25 $275,000 compensatory and punitive damages, and his “release from jail[].” Id. at 7. 26 Jabbar has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a), 27 however, and has not filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 28 U.S.C. § 1915(a). 1 I. Failure to Pay Filing Fee or Request IFP Status 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 $400. 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 IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s 8 (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the 9 entire fee in “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 10 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and 11 regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 12 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 13 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 14 of fees to file an affidavit that includes a statement of all assets possessed and 15 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 16 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a 17 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 18 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 20 trust account statement, the Court assesses an initial payment of 20% of (a) the average 21 monthly deposits in the account for the past six months, or (b) the average monthly 22 balance in the account for the past six months, whichever is greater, unless the prisoner 23 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 24 custody of the prisoner then collects subsequent payments, assessed at 20% of the 25 preceding month’s income, in any month in which his account exceeds $10, and forwards 26 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 27 Bruce, 136 S. Ct. at 629. 28 /// 1 Because Jabbar has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 2 commence a civil action, nor filed a properly supported Motion to Proceed IFP pursuant 3 to 28 U.S.C. § 1915(a), his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 4 493 F.3d at 1051. 5 II. Conclusion and Order 6 Accordingly, the Court: 7 (1) DISMISSES this civil action without prejudice based on Plaintiff’s failure 8 to pay the $400 civil filing and administrative fee or to submit a Motion to Proceed IFP 9 pursuant to 28 U.S.C. §§ 1914(a) and 1915(a). 10 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 11 filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) 12 complete and file a Motion to Proceed IFP which includes a certified copy of his GBDF 13 trust account statements for the 6-month period preceding the filing of his Complaint. See 14 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 15 (3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 16 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 17 Pauperis.”1 If Plaintiff fails to either prepay the $400 civil filing fee or fully complete 18 and submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 19 20 21 1 Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full $400 civil filing fee, or submitting a properly supported Motion to Proceed IFP, his 22 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 $400 filing fee at once, or is granted IFP status and is obligated to pay the full filing 24 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, 26 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. § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity 28 1 || dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 2 ||requirement and without further Order of the Court. 3 IT IS SO ORDERED. 4 5 || Dated: January 16, 2020 Mk 6 Hon. John A. Houston 7 nited States District Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4