Williams v. United States Marshals

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:22-cv-0139-BAS-BLM BILLY PAUL WILLIAMS, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE v. FOR FAILING TO PAY 14 FILING FEE REQUIRED

15 BY 28 U.S.C. § 1914(a) AND/OR UNITED STATES MARSHALS, FAILING TO MOVE TO PROCEED 16 Defendants. IN FORMA PAUPERIS 17 PURSUANT TO 28 U.S.C. § 1915(a)

19 BILLY PAUL WILLIAMS (“Plaintiff”), currently detained, awaiting trial at the 20 Otay Mesa Detention Center in San Diego, California, and proceeding pro se, has filed a 21 civil action under Bivens v. Six Unknown Named Agents of the Federal Bureau of 22 Narcotics, 403 U.S. 388 (1971). See Compl., ECF No. 1 at 2, 4. Plaintiff has not prepaid 23 the $402 civil filing fee required by 28 U.S.C. § 1914(a), however, and has not filed a 24 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 25 26 I. Failure to Pay Filing Fee or Request IFP Status 27 All parties instituting any civil action, suit or proceeding in a district court of the 1 United States, except an application for writ of habeas corpus, must pay a filing fee of 2 $402. See 28 U.S.C. § 1914(a).1 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, if the plaintiff is a prisoner, he 6 remains obligated to pay the entire filing fee in “increments” even if he is granted leave to 7 commence his suit IFP, see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 8 regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); 9 Taylor v. Delatoore, 281 F.3d 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 properly supported Motion to Proceed 12 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 13 § 1914(a); Andrews, 493 F.3d at 1051. 14 15 II. Conclusion and Order 16 For the reasons set forth above, the Court hereby: 17 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 18 $402 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 19 28 U.S.C. §§ 1914(a) and 1915(a); and 20 (2) GRANTS Plaintiff forty-five (45) days from the date of this Order, or on or 21 before March 21, 2022, to: (a) prepay the entire $402 civil filing and administrative fee in 22 full; or (b) complete and file a Motion to Proceed IFP that includes a certified copy of his 23 trust account statement for the six-month period preceding the filing of his Complaint. See 24

25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 26 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to proceed 27 IFP. Id. 1 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 2 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 3 || with this Court’s approved form, “Motion and Declaration in Support of Motion to Proceed 4 Forma Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or complete 5 |}and submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 6 || dismissed without prejudice based on Plaintiffs failure to satisfy 28 U.S.C. § 1914(a)’s fee 7 requirements and without further Order of the Court. 8 9 IT IS SO ORDERED. 10 A , 11 || DATED: February 2, 2022 Lin A (Lyohaa 6 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27