Howard v. S.D. Cal

Opinion

EARLE S. HOWARD, Case No.: 23-cv-1271-BAS-BLM

Plaintiff, ORDER TO PAY FILING FEE OR v. FILE APPLICATION TO PROCEED IN FORMA PAUPERIS

Defendant. Plaintiff Earle S. Howard, who is proceeding pro se and is currently incarcerated at the California Health Care Facility (“CHCF”), has filed a civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) He has neither prepaid the civil filing fee required by 28 U.S.C. § 1914(a) nor filed a motion to proceed in forma pauperis (“IFP”). All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $402. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a prisoner, as Plaintiff is here, even if he is granted leave to commence his suit IFP, he will remain obligated to pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). Plaintiff has not prepaid the $402 in filing and administrative fees required to commence this civil action and he has not filed a Motion to Proceed IFP which complies with 28 U.S.C. § 1915(a)(1) and (2). Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. Accordingly, the Court: (1) DISMISSES this civil action sua sponte without prejudice based on Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed to: (a) prepay the entire $402 civil filing and administrative fee in full or (b) complete and file a properly supported Motion to Proceed IFP, see 28 U.S.C. § 1915(a)(2); CivLR 3.2(b); and

1 In addition to the $350 statutory fee, civil litigants must pay an additional 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, 2014)). The additional $52 administrative fee does (3) DIRECTS the Clerk of the Court to provide Plaintiff with this Court’s approved form “Motion and Declaration in Support of Motion to Proceed In Forma Pauperis.”! /\ DATED: July 31, 2023 yi A A (Lyohaa 6 Hog. Cynthia Bashant United States District Judge Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full $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, 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, fails to state a claim, or seeks damages from defendants who are immune); see also Rhodes Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required 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”).