Dorado v. Crumb ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DANIEL DORADO, Case No.: 3:20-cv-1936-JAH-LL Booking No. 19778496, 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 CATHERINE CRUMB, et al., FAILING TO MOVE TO PROCEED 15 Defendants. IN FORMA PAUPERIS 16 PURSUANT TO 28 U.S.C. § 1915(a) 17 18 Daniel Dorado (“Plaintiff”), proceeding pro se, and currently housed at the George 19 F. Bailey Detention Facility (“GBDF”), filed a civil rights action. Compl., ECF No. 1. 20 He alleges the trial court lacked jurisdiction in his criminal case. Id. Plaintiff has not 21 prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a), however, and has not 22 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 23 I. Failure to Pay Filing Fee or Request IFP Status 24 All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 27 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 28 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 1 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s 2 (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the 3 entire fee in “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 4 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and 5 regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 6 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 7 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 8 of fees to file an affidavit that includes a statement of all assets possessed and 9 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 10 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a 11 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 12 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 13 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 14 trust account statement, the Court assesses an initial payment of 20% of (a) the average 15 monthly deposits in the account for the past six months, or (b) the average monthly 16 balance in the account for the past six months, whichever is greater, unless the prisoner 17 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 18 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 19 preceding month’s income, in any month in which his account exceeds $10, and forwards 20 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 21 Bruce, 136 S. Ct. at 629. 22 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 23 commence a civil action, nor filed a properly supported Motion to Proceed IFP pursuant 24 to 28 U.S.C. § 1915(a), his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 25 493 F.3d at 1051. 26 / / / 27 / / / 28 / / / 1 II. Conclusion and Order 2 Accordingly, the Court: 3 (1) DISMISSES this civil action without prejudice based on Plaintiff’s failure 4 to pay the $400 civil filing and administrative fee or to submit a Motion to Proceed IFP 5 pursuant to 28 U.S.C. §§ 1914(a) and 1915(a). 6 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 7 filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) 8 complete and file a Motion to Proceed IFP which includes a certified copy of his trust 9 account statements for the 6-month period preceding the filing of his Complaint. See 28 10 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 11 (3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 12 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 13 Pauperis.”1 If Plaintiff fails to either prepay the $400 civil filing fee or fully complete and 14 submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 15 / / / 16 / / / 17 / / / 18 / / / 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 6 || Dated: October 6, 2020 7 n. John A. Houston g Anited States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4