Byerly v. United States ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NATHAN BYERLY, Case No.: 3:21-cv-00864-WQH-MDD No. 80598, 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 UNITED STATES; ICS TELECOM; FAILING TO MOVE TO PROCEED 16 INMATE TELEPHONE SERVICE; IN FORMA PAUPERIS GLOBAL TEL LINK CORP; 17 PURSUANT TO CORRLINKS, 28 U.S.C. § 1915(a) 18 Defendants. 19 20 Plaintiff Nathan Byerly (“Plaintiff”), currently incarcerated at Idaho Maximum 21 Security Institution, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. 22 Section 1983. (See ECF No. 1, Compl.) 23 I. Failure to Pay Filing Fee or Request In Forma Pauperis (“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 /// 27 /// 28 /// 1 $402. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 3 pursuant to 28 U.S.C. Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 4 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 5 Plaintiff is a prisoner, and even if he is granted leave to commence his suit IFP, he 6 remains obligated to pay the entire filing fee in “increments,” see Williams v. Paramo, 7 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 8 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 9 (9th Cir. 2002). 10 To date, Plaintiff has not paid the initial filing fee or filed a Motion to Proceed IFP. 11 Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 12 1051. 13 II. Conclusion and Order 14 For the reasons set forth above, the Court hereby: 15 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 16 $402 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 17 28 U.S.C. Section 1914(a) and Section 1915(a); and 18 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 19 filed to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) 20 complete and file a Motion to Proceed IFP which includes a certified copy of his trust 21 account statement for the 6-month period preceding the filing of his Complaint. See 28 22 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 23 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $52. 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 28 1 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 2 || with this Court’s approved form “Motion and Declaration in Support of Motion to 3 || Proceed In Forma Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or 4 ||complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will 5 ||remain dismissed without prejudice based on Plaintiff's failure to satisfy the fee 6 || requirements of 28 U.S.C. Section 1914(a) and without further Order of the Court. 7 IT IS SO ORDERED. 8 || Dated: May 13, 2021 BE: eg Ze. Ma 9 Hon, William Q. Hayes 10 United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 oe