(PC) Brass v. Montgomery

Opinion

GARY BRASS, Jr., Case No. 22-cv-1466-BAS-MSB CDCR #G-05645, Plaintiff, ORDER DISMISSING CIVIL ACTION WITHOUT PREJUDICE v. FOR FAILING TO PAY FILING FEE W.L. MONTGOMERY; MARIO DE LA REQUIRED BY 28 U.S.C. § 1914(a) TORRE; FAVELA; A. CANEDO, AND/OR FAILING TO MOVE TO PROCEED IN FORMA PAUPERIS Defendant. PURSUANT TO 28 U.S.C. § 1915(a)

Plaintiff Gary Brass, Jr., proceeding pro se and while housed in California State Prison, Corcoran, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 23, 2022. (Compl., ECF No. 1.) Plaintiff claims his constitutional rights were violated when he was previously housed at Calipatria State Prison. (Id. at 1.) 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 $402.1 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of the entire fee only if he is granted leave to proceed in forma pauperis (“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, 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 neither prepaid the $402 in filing and administrative fees pursuant to 28 U.S.C. § 1914(a) nor has he submitted a properly supported IFP Application 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. Accordingly, the Court DISMISSES this civil action. To proceed with his case, by no later than December 16, 2022, Plaintiff must either (a) prepay the entire $402 civil filing and administrative fees in full or (b) complete and file a Motion to Proceed IFP, which includes a certified copy of his CDCR trust account statement report for the 6-month period preceding the filing of his Complaint.2 See 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). // // //

§ 14 (eff. Dec. 1, 2020)). The additional $52 fee does not apply to persons granted leave to proceed in forma pauperis. 2 Plaintiff is cautioned that if he chooses to re-open the case by either prepaying the full $402 civil filing and administrative fees, or by submitting a properly supported IFP Application, his Complaint will be subject to an initial review, and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full $402 fee or is granted IFP 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) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an IFP complaint that is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune); see also Rhodes v. 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 “seeking The Clerk of Court is DIRECTED to provide Plaintiff with this Court’s approved form “Motion and Declaration in Support of Motion to Proceed In Forma Pauperis.” IT IS SO ORDERED. / , DATED: November 4, 2022 Ypilag (Ayphan 6 United States District Judge