Turner v. County of San Diego

• Court: District Court, S.D. California
• Decided: August 26, 2022
• Docket: 3:22-cv-01222
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BRYAN TURNER, JR., Case No.: 22-CV-1222-RSH-JLB INMATE #22726041, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY FILING FEE 14 REQUIRED BY 28 U.S.C. § 1914(a)

15 AND/OR FAILING TO MOVE TO COUNTY OF SAN DIEGO, et al., PROCEED IN FORMA PAUPERIS 16 Defendants. PURSUANT TO 28 U.S.C. § 1915(a) 17 18

19 Plaintiff David Bryan Turner, Jr., currently incarcerated at the San Diego County 20 Jail in San Diego, California, is proceeding pro se in this civil rights action pursuant to 42 21 U.S.C. § 1983. ECF No. 1. 22 I. Failure to Pay Filing Fee or Request In Forma Pauperis (“IFP”) Status 23 All parties instituting any civil action, suit or proceeding in a district court of the 24 United States, except an application for writ of habeas corpus, must pay a filing fee of 25 $402, consisting of a $350 statutory fee plus an additional administrative fee of $52.1 See 26 27 28 1 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 2 Schedule, § 14 (eff. Dec. 1, 2020)). An action may proceed despite a plaintiff’s failure to 3 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 4 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 5 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, even if Plaintiff is granted leave to 6 commence his suit IFP, he remains obligated to pay the entire filing fee in “increments,” 7 see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his 8 case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1)-(2); Taylor v. Delatoore, 281 F.3d 9 844, 847 (9th Cir. 2002). 10 Here, Plaintiff has not prepaid the $402 in filing and administrative fees required to 11 commence this civil action, nor has he submitted a Motion to Proceed IFP pursuant to 28 12 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); 13 Andrews, 493 F.3d at 1051. 14 II. Conclusion 15 For the reasons discussed above, the Court hereby 16 (1) DISMISSES this civil action sua sponte without prejudice based on 17 Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit a Motion 18 to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 19 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 20 to: (a) prepay the entire $402 civil filing and administrative fee in full; OR (b) complete 21 and file a Motion to Proceed IFP which includes a certified copy of his trust account 22 statement for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. 23 § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 24 The Clerk of the Court is DIRECTED to provide Plaintiff with this Order and the 25 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 26 Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or complete and submit 27 the enclosed Motion to Proceed IFP within 45 days, this action will be dismissed without 28 1 || prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirements.” 2 IT IS SO ORDERED. 3 ip 4 || Dated: August 26, 2022 ferkue a ° 5 Hon. Robert S. Huie 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 4/7 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 23 || U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full $402 filing fee at once, or is granted IFP status 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) 25 ||(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 6 damages from defendants who are immune); see also Rhodes vy. Robinson, 621 F.3d 1002, 27 || 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all 28 complaints filed by prisoners seeking “redress from a governmental entity or officer or employee of a governmental entity.”’).