Bonilla v. Anello

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 STEVEN WAYNE BONILLA, Case No.: 3:20-cv-00111-AJB-LL CDCR #J-48500, [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 MICHAEL M. ANELLO; WILLIAM Q. FAILING TO MOVE TO PROCEED 16 HAYES; LARRY A. BURNS; WILLIAM IN FORMA PAUPERIS V. GALLO; BARRY T. MOSKOWITZ; 17 PURSUANT TO ANDREW G. SCHOPLER; RUBEN B. 28 U.S.C. § 1915 (a) 18 BROOKS; JAN M. ADLER; ANTHONY J. BATTAGLIA; CYNTHIA BASHANT; [19] JANIS L. SAMMARTINO; JILL L. 20 BARTICK; CATHY A. BENCIVENGO; JOHN A. HOUSTON; BARBARA L. [21] MAJOR; DANA M. SABRAW; 22 GONZALO P. CURIEL, 23 Defendants. [24] 25 Plaintiff Steven Wayne Bonilla, proceeding pro se and currently incarcerated at San 26 Quentin State Prison has filed a civil action. (See ECF No. 1, Compl.) 27 I. Failure to Pay Filing Fee or Request IFP Status 28 All parties instituting any civil action, suit or proceeding in a district court of the 1 United States, except an application for writ of habeas corpus, must pay a filing fee of 2 $400. See 28 U.S.C. § 1914 (a).1 An action may proceed despite a plaintiff’s failure to 3 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 4 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 5 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a 6 prisoner, and even if he is granted leave to commence his suit IFP, he remains obligated 7 to pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182 , 1185 8 (9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 9 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 10 Plaintiff has not prepaid the $400 in filing and administrative fees required to 11 commence this civil action, nor has he submitted a properly supported Motion to Proceed 12 IFP pursuant to 28 U.S.C. Section 1915 (a). Therefore, his case cannot yet proceed. See [13] 28 U.S.C. § 1914 (a); Andrews, 493 F.3d at 1051 . 14 II. Conclusion and Order 15 For the reasons set forth above, the Court hereby: 16 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 17 $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to [18] 28 U.S.C. Section 1914 (a) and Section 1915(a); and 19 (2) GRANTS Plaintiff thirty (30) days leave from the date this Order is filed 20 to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete 21 and file a Motion to Proceed IFP which includes a certified copy of his trust account 22 statement for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. 23 § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). [26] 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $50. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 [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 $400 civil filing fee or 4 ||complete and submit the enclosed Motion to Proceed IFP within 30 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: February 26, 2020 © ¢ ? Hon. Anthony J.@Battaglia 10 United States District Judge [18] 20 The Court notes that recusal is not required even though Plaintiff has named as 21 || Defendants many current and former judges of the Southern District of California, 99 including the undersigned. See Perry v. Schwarzenegger, 630 F.3d 909, 916 (9th Cir. 2011) (“It ...important.. . that judges not recuse themselves unless required to do so, 23 || or it would be too easy for those who seek judges favorable to their case to disqualify 54 those that they perceive to be unsympathetic merely by publicly questioning their impartiality.”). Among those named as Defendants are all the members of the Court 25 ||currently hearing prisoner cases. Thus, to recuse under these circumstances could lead to 5 an untenable situation in which the entire Southern District of California would be 6 || foreclosed from deciding Plaintiff's present and future actions. See Ignacio v. Judges of 27 || the U.S. Court of Appeals for the Ninth Circuit, 453 F.3d 1160, 1164-65 (9th Cir. 2006) 28 (applying the rule of necessity, which provides that a judge is not disqualified from hearing a case that “cannot be heard otherwise’).