Rivas v. M.C.C. San Diego

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 DAVID RIVAS, Case No.: 25-cv-00806-AJB-BLM BOP #14267-298, [12] ORDER DISMISSING CIVIL Plaintiffs, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY [14] FILING FEES REQUIRED M.C.C. SAN DIEGO; 15 BY 28 U.S.C. § 1914 (a) JASON BURGANSON, Officer, 16 Defendants. [18] 19 Plaintiff David Rivas, while incarcerated at the Metropolitan Correctional Center 20 (“MCC”) in San Diego, and proceeding pro se, filed a letter entitled as a petition with the 21 Clerk of the Court on April 2, 2025.1 (See ECF No. 1.) Because Plaintiff seeks monetary [23] 1 Plaintiff claims to have been held in a secured housing unit at MCC since July 2024, [24] and to have been awaiting transfer at the time of filing after having been sentenced to BOP 25 custody for a term of 50 months. (See ECF No. 1 at 1.) The Court has confirmed Plaintiff was found to have violated the terms of his supervised release based on a guilty plea and [26] conviction in Superior Court of California (San Diego) Case Number SCD292707, and had 27 his supervised release revoked on December 12, 2024, by Judge Sammartino in United States v. Mendez, et al., S.D. Cal. Case No. 3:09-cr-00710-JLS-6 (ECF Nos. 744, 747). [28] 1 damages related to the conditions of his confinement at MCC, the Court construes his 2 pleading as a complaint arising under general federal question jurisdiction pursuant to 28 3 U.S.C. § 1331 and Bivens v. Six Unknown Named Federal Bureau of Narcotics Agents, [4] 403 U.S. 388 (1971). (See id. at 1‒6.) 5 I. Failure to Pay Filing Fee or Request IFP Status 6 All parties instituting any civil action, suit or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee of 8 $405.2 An action may proceed despite a plaintiff’s failure to prepay the entire fee only if 9 he is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 (a). 10 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); cf. Hymas v. U.S. Dep’t 11 of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) “[W]here [an] IFP application is denied 12 altogether, Plaintiff’s case [cannot] proceed unless and until the fee[s] [a]re paid.”) (9th 13 Cir. 2007). 14 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 15 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 16 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 17 the filing of the complaint.” 28 U.S.C. § 1915 (a)(1), (2); Andrews v. King, 398 F.3d 1113 , 18 1119 (9th Cir. 2005). Using this financial information, the court “assess[es] and when 19 funds exist, collect[s], … an initial partial filing fee,” which is “calculated based on ‘the 20 average monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the [22] 23 notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue” (quoting United States ex [24] rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 25 1992)). [26] 2 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $55. See 28 U.S.C. § 1914 (a); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The $55 administrative fee [28] 1 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 2 payments of 20 percent of the preceding month’s income credited to the prisoner’s 3 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915 (b)(1)–(2)). In short, while 4 prisoners may qualify to proceed IFP without having to pay the full statutory filing upfront, 5 they remain obligated to pay the full amount due in monthly payments. See Bruce v. 6 Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915 (b)(1) & (2). 7 Plaintiff has not prepaid the $405 fee required to commence this civil action, nor has 8 he submitted a motion to proceed IFP pursuant to 28 U.S.C. § 1915 (a). Therefore, his case 9 cannot yet proceed. See 28 U.S.C. § 1914 (a); Andrews, 493 F.3d at 1051 . 10 II. Conclusion and Order 11 Accordingly, the Court: 12 (1) DISMISSES this civil action without prejudice based on Plaintiff’s failure to 13 pay the $405 civil filing and administrative fee or to submit a motion to proceed IFP 14 pursuant to 28 U.S.C. §§ 1914 (a) and 1915(a); 15 (2) GRANTS Plaintiff forty-five (45) days leave from the date of this Order to 16 re-open the case by: (a) paying the $405 civil filing and administrative fee in full; or (b) 17 completing and filing a motion to proceed IFP which includes a certified copy of his 18 prisoner trust account statements for the 6-month period preceding the filing of his 19 complaint. See 28 U.S.C. § 1915 (a)(2); S.D. Cal. CivLR 3.2(b); and 20 (3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 21 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 22 Pauperis.”3 If Plaintiff fails to either prepay the $405 civil filing fee or fully complete and [24] 25 3 Plaintiff is cautioned that if he chooses to reopen this case by either paying the full $405 civil filing fee, or submitting a properly supported Motion to Proceed IFP, his [26] complaint will be screened before service and may be dismissed sua sponte pursuant to 28 27 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915 (e)(2)(B), regardless of whether he pays the full filing fee at once, or is granted IFP status and is obligated to pay the full filing fee in [28] 1 |}submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 2 ||dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914 (a)’s fee 3 ||requirement and without further Order of the Court. 4 IT IS SO ORDERED. 5 || Dated: May 9, 2025 © 6 Hon. Anthony J.Battaglia 7 United States District Judge [22] 23 || 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, or seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621 F.3d 1002 , 25 || 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 or officer or employee of a governmental entity.”). “[A]fter the Supreme Court’s decision in Eghert v. 27 || Boule, [ 596 U.S. 482 (2022)] most claims seeking to extend Bivens are ‘dead on arrival.’” 28 Stanard v. Dy, 88 F.4th 811, 815-16 (9th Cir. 2023) (quoting Harper v. Nedd, 71 F.4th 1181, 1187 (9th Cir. 2023)).