Smith v. Sgt. Hampton

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 MICHAEL LENIOR SMITH, Case No.: 23-cv-1978-BAS-JLB CDCR #P-64019, [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 SGT. HAMPTON, C/O FLORES, and FAILING TO MOVE TO PROCEED 15 C/O COLON, IN FORMA PAUPERIS 16 Defendants. PURSUANT TO 28 U.S.C. § 1915 (a) [18] Plaintiff Michael Lenior Smith, who is proceeding pro se and is currently housed at [19] the Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, [20] has filed a civil rights action pursuant to 42 U.S.C. § 1983 . (ECF No. 1.) He has not [21] prepaid the civil filing fee required by 28 U.S.C. § 1914 (a), and although the Court has [22] received a trust account statement from RJD, Plaintiff has not filed a Motion to Proceed In [23] Forma Pauperis (“IFP”). [24] I. Failure to Pay Filing Fee or Request IFP Status [25] All parties instituting any civil action, suit, or proceeding in a district court of the [26] United States, except an application for writ of habeas corpus, must pay a filing fee of [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, however, if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); see also 4 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Section 1915(a)(2) requires all 5 persons seeking to proceed without full prepayment of fees to file an affidavit that includes 6 a statement of all assets possessed and demonstrates an inability to pay. See Escobedo v. 7 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In support of this affidavit, the Prison 8 Litigation Reform Act (“PLRA”) also requires prisoners to submit a “certified copy of the 9 trust fund account statement (or institutional equivalent) for . . . the 6-month period 10 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915 (a)(2); Andrews v. 11 King, 398 F.3d 1113, 1119 (9th Cir. 2005). 12 Plaintiff has not prepaid the $402 in filing and administrative fees required to 13 commence this civil action, nor has he submitted a properly supported Motion to Proceed 14 IFP pursuant to 28 U.S.C. § 1915 (a). Although Plaintiff’s trust account statement was 15 submitted to the Court by RJD, he has not submitted the required affidavit stating what 16 assets he possesses which would demonstrate an inability to pay. See Escobedo, 787 F.3d 17 at 1234 . Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914 (a); see also 18 Andrews, 493 F.3d at 1051 .2 19 II. Conclusion 20 Accordingly, the Court: 21 (1) DISMISSES this civil action sua sponte, without prejudice, based on [24] 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See [25] 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed 26 IFP. Id. 2 Plaintiff is cautioned that the PLRA requires that all prisoners who proceed IFP pay the entire fee in 27 “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82 , 83–84 (2016), and regardless of whether their action is ultimately dismissed, see 28 U.S.C. § 1915 (b)(2); see also Taylor v. Delatoore, 281 F.3d 28 1 Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit a Motion 2 to Proceed IFP pursuant to 28 U.S.C. § 1914 (a) and § 1915(a); and 3 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 4 to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 5 file a properly supported Motion to Proceed IFP. See 28 U.S.C. § 1915 (a)(2); S.D. Cal. 6 Civ. L.R. 3.2(b). Accordingly, should Plaintiff wish to pursue this action, Plaintiff is 7 hereby ORDERED to either pay the $402 civil filing and administrative fee or file a Motion 8 to Proceed IFP on or before December 14, 2023. 9 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s 10 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 11 Pauperis.”3 12 IT IS SO ORDERED. 13 Dated: October 30, 2023 14 Hon. Cynthia Bashant United States District Judge [22] 23 3 Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full $402 civil filing fee, or submitting a properly supported Motion to Proceed IFP, his Complaint will be screened before [24] service and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 25 1915(e)(2)(B), regardless of whether he pays the full $402 filing fee at once, or is granted IFP status and is obligated to pay the full filing fee in installments. See Lopez v. Smith, 203 F.3d 1122 , 1126–27 (9th 26 Cir. 2000) (en banc) (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, or seeks 27 damages from defendants who are immune); see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners