Moore v. Duran

Opinion

MERRICK MOORE, Case No.: 3:23-cv-00194-GPC-DDL CDCR No. H-82249, ORDER DISMISSING CIVIL Plaintiff, ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY FILING FEE REQUIRED

BY 28 U.S.C. § 1914(a) AND/OR J.J. DURAN, et al., FAILING TO MOVE TO PROCEED Defendants. IN FORMA PAUPERIS 28 U.S.C. § 1915(a)

Plaintiff Merrick Moore (“Plaintiff” or “Moore”), proceeding pro se and currently housed at Salinas Valley State Prison (“SVSP”) located in San Diego, California, has filed this civil rights action pursuant to 42 U.S.C. § 1983. See ECF No. 1, “Compl.” I. Failure to Pay Filing Fee or Request IFP Status 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).1 An action may proceed despite a plaintiff’s failure to

1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. Section 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, and even if he is granted leave to commence his suit IFP, he remains 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 fees2 required to commence this civil action, nor has he submitted a properly supported Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. II. Conclusion and Order 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); and (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 Motion to Proceed IFP which includes a certified copy of his trust account statement for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s approved form “Motion and Declaration in Support of Motion to Proceed In Forma Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 Plaintiff did submit a check for the filing fee, but the check was returned by the USDC Pauperis.” But if Plaintiff fails to either prepay the $402 civil filing fee or complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will be dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirements. Dated: February 27, 2023 2 sf Hon. athe Cae United States District Judge 3