(PC) Daniels v. Moreno

Opinion

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

(“IFP”) based on indigency. 28 U.S.C. § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, (9th Cir. 2007). Even if the Court grants this permission, prisoners who proceed IFP repay the entire fee in “increments” or “installments,” regardless of whether their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 847 (9th Cir. 2002). Because Plaintiff has not prepaid the $402 fee required to }commence this civil action nor submitted a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. IJ. Conclusion and Order Accordingly, the Court: (1) DISMISSES this civil action sua sponte without prejudice based on Plaintiffs failure either to pay the $402 civil filing fee or file 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); Cal. Civ. L.R. 3.2(b). ! 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) 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 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 in forma pauperis 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 redress from a governmental entity or officer or employee of a governmental entity.”)

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 Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or complete and submit ithe 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: [7/ 2.2 aite—— Tiida Obta— United/States District Judge