Cunningham v. Ramos

• Court: District Court, S.D. California
• Decided: April 25, 2023
• Docket: 3:23-cv-00351
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MELVIN LYNN CUNNINGHAM, Jr, Case No.: 3:23-cv-00351-JAH-NLS CDCR No. F-78919, 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 ALFONSO RAMOS; JESSICA MORA, FAILING TO MOVE TO PROCEED 15 Defendants. IN FORMA PAUPERIS 16 PURSUANT TO 28 U.S.C. § 1915(a) 17

19 20 I. Failure to Pay Filing Fee or Request IFP Status 21 All parties instituting any civil action, suit or proceeding in a district court of the 22 United States, except an application for writ of habeas corpus, must pay a filing fee of 23 $402. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 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 28 1 prepay the entire fee, however, if he is granted leave to proceed in forma pauperis (“IFP”) 2 pursuant to 28 U.S.C. Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 3 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). If the Plaintiff is 4 a prisoner, and even if he is granted leave to commence his suit IFP, he remains obligated 5 to pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 6 (9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. 7 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 8 Plaintiff has not prepaid the $402 in filing and administrative fees required to 9 commence this civil action, and although he has submitted a Prisoner Trust Account 10 Statement, he has not submitted a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). 11 Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 12 1051. 13 II. Conclusion and Order 14 Accordingly, the Court: 15 (1) DISMISSES this civil action sua sponte without prejudice based on 16 Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit a Motion 17 to Proceed IFP pursuant to 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. Civ. L.R. 3.2(b). 23 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s 24 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 25 Pauperis.” But if Plaintiff fails to either prepay the $402 civil filing fee or complete and 26 27 28 1 submit the enclosed Motion to Proceed IFP within 45 days, this action will be dismissed 2 || without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirements.” 3 IT IS SO ORDERED. 4 || Dated: April 25, 2023 5 n. John A. Houston 6 nited States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ||* Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full 99 $402 civil filing fee, or submitting a properly supported Motion to Proceed IFP, his Complaint will be screened before service and may be dismissed sua sponte pursuant to 28 23 U.S.C. § 1915A(b) and/or 28 U.S.C. § 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 Cir. 2000) (en banc) 25 ||(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, 6 or seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621 27 || F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. 28 § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.”).