(PC) Daniels v. Moreno

• Court: District Court, S.D. California
• Decided: November 8, 2022
• Docket: 3:22-cv-01263
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} CHARLES A. DANIELS, Case No.: 22cv1263-JO (KSC) CDCR #AA-4443, Plaintiff | ORDER DISMISSING CIVIL 13 "| ACTION WITHOUT PREJUDICE 14 VS. FOR FAILING TO PAY FILING FEE REQUIRED 15 |} a. MORENO, et al., BY 28 U.S.C. § 1914(a) AND/OR 16 FAILING TO MOVE TO PROCEED Defendants.| JN FORMA PAUPERIS 17 PURSUANT TO 18 28 U.S.C. § 1915(a) 19 20 On August 22, 2022, Plaintiff Charles A. Daniels, a state prisoner proceeding pre 21 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 in the Eastern District o 22 || California. (ECF No. 1.) The Complaint was subsequently transferred to this Court. (EC] 23 || No. 4.) 24 I. Failure to Pay Filing Fee or Request Leave to Proceed IFP 25 A party instituting a civil action in a district court of the United States must pay « 26 || filing fee of $402. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, Distric 27 ||Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). An action may proceed despite : 28 || plaintiff's failure to pay this fee only if the Court grants leave to proceed in forma pauperi

1 || (“IFP”) based on indigency. 28 U.S.C. § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 2 (9th Cir. 2007). Even if the Court grants this permission, prisoners who proceed IFP 3 repay the entire fee in “increments” or “installments,” regardless of whether their 4 || action is ultimately dismissed. 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 5 847 (9th Cir. 2002). Because Plaintiff has not prepaid the $402 fee required to 6 |}commence this civil action nor submitted a Motion to Proceed IFP pursuant to 28 U.S.C. 7 || § 1915(a), his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 8 1051. 9 IJ. Conclusion and Order 10 Accordingly, the Court: 11 (1) DISMISSES this civil action sua sponte without prejudice based on 12 ||Plaintiffs failure either to pay the $402 civil filing fee or file a Motion to Proceed IFP 13 || pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 14 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 15 || to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 16 |) file a Motion to Proceed IFP which includes a certified copy of his trust account statement 17 || for the 6-month period preceding the filing of his Complaint.' See 28 U.S.C. § 1915(a)(2); 18 Cal. Civ. L.R. 3.2(b). 19 20 21 ||! Plaintiff is cautioned that if he chooses to proceed by either prepaying the $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) 23 || and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full filing fee up front, or is granted IFP status and is obligated to pay the full filing fee in installments. See Lopez 4 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) 25 ||“not only permits but requires” the court to sua sponte dismiss an in forma pauperis 26 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. 27 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.”)

1 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s 2 ||approved form “Motion and Declaration in Support of Motion to Proceed In Forma 3 || Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or complete and submit 4 |ithe enclosed Motion to Proceed IFP within 45 days, this action will be dismissed without 5 || prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirements. 6 IT IS SO ORDERED. 7 8 |/Dated: [7/ 2.2 9 aite—— Tiida Obta— 10 United/States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28