Tyler v. C-Yard Sgt Banulos

• Court: District Court, S.D. California
• Decided: January 10, 2024
• Docket: 3:23-cv-02278
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CLAUDIE TYLER, Case No. 23-cv-2278-BAS-MMP CDCR No. K-19763, 11 ORDER DISMISSING CIVIL Plaintiff, 12 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY 13 FILING FEE AND/OR FAILING TO

14 MOVE TO PROCEED IN FORMA C-YARD SERGEANT BANULOS, PAUPERIS 15 Defendant. 16 17 Claudie Tyler is the plaintiff in this action and is proceeding without an attorney 18 (representing oneself in litigation is called proceeding “pro se”). Mr. Tyler is currently 19 housed at the Richard J. Donovan Correctional Facility located in San Diego, California, 20 and has filed a civil rights action, which states a claim under 42 United States Code 21 (“U.S.C.”) Section 1983. (See ECF No. 1.) This is a civil case. To file a civil case in 22 federal court, any plaintiff such as Mr. Tyler must pay a civil filing fee, which is required 23 by 28 U.S.C. Section 1914(a). In the event the plaintiff does not have the money or 24 resources to pay that fee, the plaintiff may file a Motion to Proceed In Forma Pauperis, 25 which may allow his case to proceed without the upfront payment of the filing fee. 26 In this case, Mr. Tyler has not paid the civil filing fee and he has not filed a Motion 27 to Proceed In Forma Pauperis. 28 1 I. Failure to Pay Filing Fee or to Request In Forma Pauperis Status 2 Any person filing a civil case such as this one must pay a filing fee of $405. See 28 3 U.S.C. § 1914(a). 1 The case may go forward without the plaintiff paying the entire filing 4 fee, though, if the court grants him permission to proceed “in forma pauperis”—which 5 means as a person without the money or resources to pay the filing fee. 6 The statute that sets out the rules for this is 28 U.S.C. Section 1915(a). Section 7 1915(a)(2) requires all persons who want to pursue a case without paying the filing fee to 8 file a document called an affidavit. That affidavit must include a statement of all assets, or 9 things of value, the plaintiff possesses and must demonstrate the plaintiff’s inability to pay 10 the filing fee. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). This helps 11 the court to evaluate the plaintiff’s ability to pay the filing fee. 12 Plaintiffs who are imprisoned at the time they file their civil case must submit 13 another document as well, called a “trust fund account statement.” The Prison Litigation 14 Reform Act requires imprisoned plaintiffs to submit this “certified copy of the trust fund 15 account statement (or institutional equivalent) for . . . the 6-month period immediately 16 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 17 1113, 1119 (9th Cir. 2005). Plaintiff submitted this affidavit on December 29, 2023. (ECF 18 No. 4.) 19 Plaintiff has not paid the $405 in filing and administrative fees required to begin this 20 civil action. He also has not submitted a properly supported Motion to Proceed In Forma 21 Pauperis. He also has not submitted the required affidavit stating what assets he possesses 22 to show his inability to pay the filing fee for this case. See Escobedo, 787 F.3d at 1234. 23 Therefore, his case cannot go forward. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 24 25 26 1 In addition to the $350 statutory fee, civil plaintiffs must pay an additional administrative 27 fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does 28 1 1051. 2 II. Conclusion and Order 3 Accordingly, the Court: 4 (1) DISMISSES this civil case without prejudice3 because Mr. Tyler has not paid 5 the $405 civil filing and administrative fee and has not submitted a Motion to Proceed In 6 Forma Pauperis required by 28 U.S.C. Sections 1914(a) and 1915(a); and 7 (2) GRANTS Plaintiff forty-five (45) days’ leave from the date this Order is filed 8 to either: (a) pay the entire $405 civil filing and administrative fee in full; or (b) complete 9 and file a Motion to Proceed In Forma Pauperis with the required supporting affidavit. 10 See 28 U.S.C. § 1915(a)(1); S.D. Cal. Civ. L.R. 3.2(a). Forty-five (45) days from today is 11 Monday, February 26, 2024. 12 The Clerk of the Court is DIRECTED to provide Mr. Tyler with this Court’s 13 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 14 Pauperis.” Mr. Tyler is cautioned that if he chooses to proceed by either paying the full 15 $405 civil filing fee, or submitting a properly supported Motion to Proceed In Forma 16 Pauperis, his Complaint will be screened before service on any defendant and may be 17 dismissed by the Court under 28 U.S.C. Section 1915A(b) and/or 28 U.S.C. Section 18 1915(e)(2)(B), regardless of whether Mr. Tyler pays the full $405 filing fee at once, or is 19 granted in forma pauperis status and is obligated to pay the full filing fee in installments. 20 21 22 2 Mr. Tyler is cautioned that the Prison Litigation Reform Act requires that all prisoners 23 who proceed in forma pauperis must eventually pay the entire filing fee but may do so in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016), and 24 regardless of whether their action is ultimately dismissed (meaning, regardless of whether 25 they win their case). See 28 U.S.C. § 1915(b)(2) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 26 3 By dismissing this action without prejudice, the Court has given Mr. Tyler the chance to 27 fix either his lack of payment of the filing fee or his failure to file a Motion to Proceed In Forma Pauperis. If he does not do either of these things, his case will remain closed, and 28 1 || See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 2 || U.S.C. § 1915(e) “not only permits but requires” the court to [on its own initiative] dismiss 3 in forma pauperis complaint that is frivolous, malicious, fails to state a claim, or seeks 4 ||damages from defendants who are immune); see also Rhodes v. Robinson, 621 F.3d 1002, 5 || 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all 6 ||complaints filed by prisoners “seeking redress from a governmental entity or officer or 7 ||}employee of a governmental entity.”). 8 IT IS SO ORDERED. 9 ) 10 || DATED: January 10, 2024 yi uA (Lyohaa 6 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4