United States District Court, S.D. California
ORDER DISMISSING CIVIL ACTION FOR FAILING TO PAY
FILING FEES REQUIRED BY 28 U.S.C. § 1914(A)
William Q. Hayes Judge.
DAVID WILLIAMS (“Plaintiff”), currently detained
at the San Diego Central Jail (SDCJ) and proceeding pro se,
has filed a civil rights complaint pursuant to 42 U.S.C.
§ 1983 (Doc. No. 1).
Failure to Pay Filing Fee or Request IFP Status
parties instituting any civil action, suit or proceeding in a
district court of the United States, except an application
for writ of habeas corpus, must pay a filing fee of $400.
See 28 U.S.C. § 1914(a). The action may proceed
despite a plaintiff’s failure to prepay the entire fee
only if he is granted leave to proceed in forma pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a).
See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th
Cir. 2007) (“Cervantes”); Rodriguez
v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a
prisoner who is granted leave to proceed IFP remains
obligated to pay the entire fee in “increments”
or “installments, ” Bruce v. Samuels,
___ U.S. ___, 136 S.Ct. 627, 629 (2016); Williams v.
Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and
regardless of whether his action is ultimately dismissed. See
28 U.S.C. § 1915(b)(1) & (2); Taylor v.
Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
1915(a)(2) requires all persons seeking to proceed without
full prepayment of fees to submit an affidavit that
includes a statement of all assets possessed and which
demonstrates an inability to pay. See Escobedo v.
Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In
support of this affidavit, prisoners like Plaintiff must also
submit a “certified copy of the trust fund account
statement (or institutional equivalent) for . . . the 6-month
period immediately preceding the filing of the
complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.
King, 398 F.3d 1113, 1119 (9th Cir. 2005). It is from
the certified trust account statement that the Court assesses
an initial payment of 20% of (a) the average monthly deposits
in the account for the past six months, or (b) the average
monthly balance in the account for the past six months,
whichever is greater, unless he has no assets. See
28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The
institution having custody of the prisoner then collects
subsequent payments, assessed at 20% of the preceding
month’s income, in any month in which his account
exceeds $10, and forwards those payments to the Court until
the entire filing fee is paid. See 28 U.S.C. §
1915(b)(2); Bruce, 136 S.Ct. at 629.
did not pay the filing fee required to commence a civil
action, nor has he filed a Motion to Proceed IFP, which
includes both the affidavit required by 28 U.S.C.
§ 1915(a)(1) and the certified copies of his
trust funds account statements as required by 28 U.S.C.
§ 1915(a)(2). While Plaintiff has submitted a SDCJ
“prison certificate” dated May 25, 2016 (Doc. No.
2), this certificate, by itself, is insufficient to comply
with § 1915’s additional requirements. Therefore,
Plaintiff’s case cannot yet proceed. See 28
U.S.C. § 1914(a); Cervantes, 493 F.3d at 1051.
Screening Required by 28 U.S.C. § 1915(e)(2) and §
addition, the Court cautions Plaintiff that if he chooses to
proceed further by either pre-paying the full $400 civil
filing fee, or submitting a properly supported Motion to
Proceed IFP, his Complaint will be screened before service
upon any defendant and may be immediately dismissed pursuant
to 28 U.S.C. § 1915A(b) or 28 U.S.C. §
1915(e)(2)(B) regardless of whether he pays the full filing
fee up front, or is granted leave to proceed IFP and to pay
it in monthly installments. See Lopez v. 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); 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.”).
Court further cautions Plaintiff that if his Complaint
is found frivolous or malicious, or if fails to
state a claim, its dismissal pursuant to 28 U.S.C. §
1915(e)(2) and/or § 1915A(b) may later count as a third
“strike” against him pursuant to 28 U.S.C. §
1915(g). See Andrews, 398 F.3d at 1116 n.1
(“Strikes are prior cases or appeals, brought while the
plaintiff was a prisoner, which were dismissed on the ground
that they were frivolous, malicious, or failed to state a
claim.”) (internal quotations omitted). “Pursuant
to § 1915(g), a prisoner with three strikes or more
cannot proceed IFP” unless he is in “imminent
danger of serious physical injury” at the time his
complaint is filed. Id.; 28 U.S.C. § 1915(g);
see also Williams, 775 F.3d at 1188 (citing
Cervantes, 493 F.3d at 1053).
Conclusion and Order
reason explained above, the Court:
DISMISSES this action sua sponte without prejudice for
failing to pay the $400 civil filing and administrative fee
or to submit a motion to proceed IFP pursuant to 28 U.S.C.
§§ 1914(a) and 1915(a);
DENIES Plaintiff’s Request for Discovery (Doc. No. 4)
without prejudice as both premature and moot;
GRANTS Plaintiff forty-five (45) days leave from the date of
this Order to re-open this case by: (a) prepaying the entire
$400 civil filing and administrative fee required by 28
U.S.C. § 1914(a) in full; or (b) completing and filing a
Motion to Proceed IFP which includes both the
affidavit and the certified copies of his trust account
statement for the 6-month period ...