Canales v. Guzman

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:23-cv-1059-GPC-MSB ANGEL CHRISTOPHER CANALES, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE v. FOR FAILING TO PAY 14 FILING FEE REQUIRED GUZMAN, Warden, GOVERNMENT 15 BY 28 U.S.C. § 1914(a) AND/OR CLAIMS OFFICIAL, MAIL ROOM FAILING TO MOVE TO PROCEED 16 SERGEANT, IN FORMA PAUPERIS PURSUANT 17 Defendants. TO 28 U.S.C. § 1915(a)

18 19 20 Angel Christopher Canales (“Plaintiff”), currently incarcerated at Centinela State 21 Prison located in Imperial, California, and proceeding pro se, has filed a civil action 22 pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff, however, has not prepaid the $402 civil 23 filing fee required by 28 U.S.C. § 1914(a), however, and has not filed a Motion to Proceed 24 In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 25 I. Failure to Pay Filing Fee or Request IFP Status 26 All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $402. See 28 U.S.C. § 1914(a).1 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 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a prisoner, and even 5 if he is granted leave to commence his suit IFP, he remains obligated to pay the entire filing 6 fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 7 regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); 8 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Plaintiff has not prepaid the $402 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. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 12 § 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 $402 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 17 28 U.S.C. §§ 1914(a) and 1915(a); and 18 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 19 to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 20 file a Motion to Proceed IFP which includes a certified copy of his trust account statement 21 for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 22 S.D. Cal. CivLR 3.2(b). If Plaintiff fails to either prepay the $402 civil filing fee or 23 complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 26 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 administrative fee does 27 not apply to persons granted leave to proceed IFP. Id. 1 |/remain dismissed without prejudice based on Plaintiff's failure to satisfy 28 U.S.C. 2 ||§ 1914(a)’s fee requirements and without further Order of the Court. 3 (3) DIRECTS the Clerk of the Court to provide Plaintiff with this Court’s 4 ||approved form “Motion and Declaration in Support of Motion to Proceed In Forma 5 || Pauperis.” 6 IT IS SO ORDERED. 7 ||Dated: June 13, 2023 (2. sale (0 8 Hon. Gonzalo P. Curtel 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27