Arzaga v. Gill

• Court: District Court, S.D. California
• Decided: January 22, 2021
• Docket: 3:21-cv-00041
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL AARON ARZAGA, Case No.: 3:21-cv-00041-CAB-MSB CDCR #K-89848, 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 DAVID M. GILL, et al., FAILING TO MOVE TO PROCEED 16 Defendants. IN FORMA PAUPERIS 17 PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 Plaintiff Michael Aaron Arzaga (“Plaintiff”), currently incarcerated at Kern Valley 21 State Prison, is proceeding pro se in this action, ostensibly pursuant to 42 U.S.C. Section 22 1983. (See ECF No. 18, 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 Plaintiff initially filed this action in the Northern District of California. (See 11 generally Compl.) Shortly after filing, Plaintiff was notified that he had not paid the 12 initial filing fee or filed a Motion to Proceed IFP pursuant to 28 U.S.C. Section 1915(a). 13 (See ECF No. 3, at 1.) Subsequently, Plaintiff’s action was transferred to this District 14 pursuant to 28 U.S.C. Section 1406(a). (See ECF No. 20, at 1.) To date, Plaintiff has not 15 paid the initial filing fee or filed a Motion to Proceed IFP. Therefore, his case cannot yet 16 proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 17 II. Conclusion and Order 18 For the reasons set forth above, the Court hereby: 19 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 20 $402 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 21 28 U.S.C. Section 1914(a) and Section 1915(a); and 22 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 23 filed to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) 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 ||complete and file a Motion to Proceed IFP which includes a certified copy of his trust 2 || account statement for the 6-month period preceding the filing of his Complaint. See 28 3 ||}U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 4 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 5 || with this Court’s approved form “Motion and Declaration in Support of Motion to 6 || Proceed In Forma Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or 7 ||complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will 8 ||remain dismissed without prejudice based on Plaintiff's failure to satisfy the fee 9 ||requirements of 28 U.S.C. Section 1914(a) and without further Order of the Court. 10 IT IS SO ORDERED. 11 ||Dated: January 22, 2021 € 12 Hon. Cathy Ann Bencivengo 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3