Haywood v. San Diego, CA Sheriff

Opinion

1 2 3 4 5 6 7 10 11 ERICA D. HAYWOOD, Case No.: 3:19-cv-2022-MMA-KSC Booking No. 19750859. 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO vs. PREPAY FILING FEES REQUIRED 14 BY 28 U.S.C. § 1914(a) OR FILE A SAN DIEGO SHERIFF; DEPUTY 15 MOTION TO PROCEED IN FORMA PONCE; DEPUTY STORRS; DEPUTY PAUPERIS 16 ABAS; MENTAL HEALTH DOCTORS; SAN DIEGO COUNTY PUBLIC 17 DEFENDERS, 18 Defendants. 19 20 Plaintiff Erica D. Haywood, currently housed at the Los Colinas Detention Facility 21 (“LCDF”) located in Santee, California and proceeding pro se, has filed this civil rights 22 action (“Compl.”) pursuant to 42 U.S.C. § 1983. See Doc. No. 1. Plaintiff did not prepay 23 the civil filing fee required by 28 U.S.C. § 1914(a) at the time she submitted her 24 Complaint, nor has she filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 25 28 U.S.C. § 1915(a). 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 she is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Section 4 1915(a)(2) requires all persons seeking to proceed without full prepayment of fees to file 5 an affidavit that includes a statement of all assets possessed and demonstrates an inability 6 to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). 7 Plaintiff is further cautioned that she even if she files an IFP Motion and affidavit 8 in compliance with § 1915(a)(2), she will nevertheless remain obligated to pay the entire 9 fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 10 regardless of whether her case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); 11 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). A “prisoner” is defined as “any 12 person” who at the time of filing is “incarcerated or detained in any facility who is 13 accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of 14 criminal law or the terms or conditions of parole, probation, pretrial release, or 15 diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 F.3d at 847. 16 Plaintiff must also submit a “certified copy of [her] trust fund account statement 17 (or institutional equivalent) . . . for the 6-month period immediately preceding the filing 18 of the complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust account statement, 19 the Court will assess an initial payment of 20% of (a) the average monthly deposits in 20 Plaintiff’s account for the past six months, or (b) the average monthly balance in the 21 account for the past six months, whichever is greater, unless she has no assets. See 28 22 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. After, the Court will direct the 23 institution having custody to collect subsequent payments, assessed at 20% of the 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June. 1, 2016). The additional $50 administrative fee does 28 1 |} preceding month’s income, in any month in which her account exceeds $10, and forward 2 them to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 3 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 4 ||commence a civil action, nor filed a properly supported Motion to Proceed /FP pursuant 5 ||to 28 U.S.C. § 1915(a), her case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 6 F.3d at 1051. 7 Conclusion and Order 8 Accordingly, the Court: 9 (1) DISMISSES this civil action without prejudice based on Plaintiff’s failure 10 || to pay the $400 civil filing and administrative fee or to submit a Motion to Proceed /FP 11 || pursuant to 28 U.S.C. $§ 1914(a) and 1915(a). 12 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 13 || filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) 14 complete and file a Motion to Proceed JFP which complies with 28 U.S.C. § 1915(a)(2) 15 S.D. Cal. CivLR 3.2(b). 16 (3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 17 || approved form “Motion and Declaration in Support of Motion to Proceed Jn Forma 18 || Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or fully complete and 19 submit the enclosed Motion to Proceed /FP within 45 days, this action will remain 20 || dismissed without prejudice based on her failure to satisfy 28 U.S.C. § 1914(a)’s fee 21 |}requirement and without further Order of the Court. 23 DATE: October 23, 2019 Mrchick M- < hiphlr HON. MICHAEL M. ANELLO United States District Judge 25 26 27 28 3 □ ce