Albin v. R.J. Donovan

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHAWN ALBIN, Case No.: 3:20-cv-00471-JAH-LL CDCR #AV-4808, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO v. PREPAY FILING FEES REQUIRED 14 BY 28 U.S.C. § 1914(a) OR FILE A

15 MOTION TO PROCEED IN FORMA R.J. DONOVAN; SAN DIEGO PAUPERIS 16 COUNTY JAIL, 17 Defendants. 18 19 Shawn Albin (“Plaintiff”), currently incarcerated at California Health Care 20 Facility, Stockton (“CHCF-Stockton”), and proceeding pro se, filed this civil rights action 21 pursuant to 42 U.S.C. Section 1983 seeking to sue the Richard J. Donovan Correctional 22 Facility (“RJD”), in San Diego, California and San Diego County Jail. (See Compl., ECF 23 No. 1, at 2-3.) Although the Complaint includes no factual allegations, Plaintiff states 24 that he is seeking to hold Defendants liable for retaliation and for violating Plaintiff’s 25 right to medical care. (See id.) 26 I. Failure to Pay Filing Fee or Request IFP Status 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $400. 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 IFP pursuant to 28 U.S.C. 3 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 4 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a 5 prisoner, and even if he is granted leave to commence his suit IFP, he remains obligated 6 to pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 7 (9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 8 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Plaintiff has not prepaid the $400 in filing and administrative fees required to 10 commence this civil action, nor has he submitted a properly supported Motion to Proceed 11 IFP pursuant to 28 U.S.C. Section 1915(a). Therefore, his case cannot yet proceed. See 12 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 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 $400 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 $400 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 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional 26 administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of 27 Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 28 1 || with this Court’s approved form “Motion and Declaration in Support of Motion to 2 ||Proceed Jn Forma Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or 3 ||complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will 4 ||remain dismissed without prejudice based on Plaintiff’s failure to satisfy the fee 5 ||requirements of 28 U.S.C. Section 1914(a) and without further Order of the Court. 6 IT IS SO ORDERED. 7 8 || Dated: May 4, 2020 VU 9 Hoh. John A. Houston 10 Hah States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3