Howard v. S.D. Cal

• Court: District Court, S.D. California
• Decided: July 31, 2023
• Docket: 3:23-cv-01271
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 EARLE S. HOWARD, Case No.: 23-cv-1271-BAS-BLM

13 Plaintiff, ORDER TO PAY FILING FEE OR 14 v. FILE APPLICATION TO PROCEED IN FORMA PAUPERIS 15 S.D. CAL,

16 Defendant. 17 18 19 20 Plaintiff Earle S. Howard, who is proceeding pro se and is currently incarcerated at 21 the California Health Care Facility (“CHCF”), has filed a civil rights action pursuant to 42 22 U.S.C. § 1983. (Compl., ECF No. 1.) He has neither prepaid the civil filing fee required by 23 28 U.S.C. § 1914(a) nor filed a motion to proceed in forma pauperis (“IFP”). 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 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, as 5 Plaintiff is here, even if he is granted leave to commence his suit IFP, he will remain 6 obligated to pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 7 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 8 U.S.C. § 1915(b)(1), (2); 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 and he has not filed a Motion to Proceed IFP which complies 11 with 28 U.S.C. § 1915(a)(1) and (2). Therefore, his case cannot yet proceed. See 28 U.S.C. 12 § 1914(a); Andrews, 493 F.3d at 1051. 13 Accordingly, the Court: 14 (1) DISMISSES this civil action sua sponte without prejudice based on 15 Plaintiff’s failure to pay the $402 civil filing and administrative fee or to 16 submit a Motion to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and 17 § 1915(a); 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 20 (b) complete and file a properly supported Motion to Proceed IFP, see 28 21 U.S.C. § 1915(a)(2); CivLR 3.2(b); and 22 23 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, 2014)). The additional $52 administrative fee does 28 1 (3) DIRECTS the Clerk of the Court to provide Plaintiff with this Court’s 2 approved form “Motion and Declaration in Support of Motion to Proceed In 3 Forma Pauperis.”! 4 IT IS SO ORDERED. 5 /\ 6 || DATED: July 31, 2023 yi A A (Lyohaa 6 Hog. Cynthia Bashant 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full 23 ||$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 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(B). See Lopez v. Smith, 203 F.3d 1122, 25 || 1126-27 (9th Cir. 2000) (noting that 28 U.S.C. § 1915(c) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, 6 fails to state a claim, or seeks damages from defendants who are immune); see also Rhodes 27 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required 28 by 28 U.S.C. § 1915A of all complaints filed by prisoners “seek[ing] redress from a governmental entity or officer or employee of a governmental entity”).