United States District Court, S.D. California
ABONILICO LAMAR CARROLL, Booking No. 19749688, Plaintiff,
CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.
ORDER DISMISSING CIVIL ACTION FOR FAILING TO PREPAY
FILING FEES REQUIRED BY 28 U.S.C. § 1914(a) OR FILE A
MOTION TO PROCEED IN FORMA PAUPERIS
CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE.
Lamar Carroll (“Plaintiff”), currently housed at
the San Diego Central Jail (“SDCJ”) located in
San Diego, California and proceeding pro se, filed this civil
rights action (“Compl.”) pursuant to 42 U.S.C.
§ 1983. (See ECF No. 1.) Plaintiff did not
prepay the civil filing fee required by 28 U.S.C. §
1914(a) at the time he submitted his Complaint, nor has he
filed a Motion to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a).
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). An action may
proceed despite a plaintiff's failure to prepay the
entire fee only if he is granted leave to proceed IFP
pursuant to 28 U.S.C. § 1915(a). See Rodriguez v.
Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Section
1915(a)(2) requires all persons seeking to proceed without
full prepayment of fees to file an affidavit that includes a
statement of all assets possessed and demonstrates an
inability to pay. See Escobedo v. Applebees, 787
F.3d 1226, 1234 (9th Cir. 2015).
is further cautioned that even if he files an IFP Motion and
affidavit in compliance with § 1915(a)(2), he will
nevertheless remain obligated to pay the entire fee in
“increments, ” regardless of whether his case is
ultimately dismissed. See 28 U.S.C. §
1915(b)(1) & (2); see also Williams v. Paramo,
775 F.3d 1182, 1185 (9th Cir. 2015); Taylor v.
Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). A
“prisoner” is defined as “any person”
who at the time of filing is “incarcerated or detained
in any facility who is accused of, convicted of, sentenced
for, or adjudicated delinquent for, violations of criminal
law or the terms or conditions of parole, probation, pretrial
release, or diversionary program.” 28 U.S.C. §
1915(h); Taylor, 281 F.3d at 847.
must also submit a “certified copy of [his] 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). From the
certified trust account statement, the Court will assess an
initial payment of 20% of either the average monthly deposits
in Plaintiff's account for the past six months, or 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), (4);
Taylor, 281 F.3d at 850. The Court will then direct
the institution having custody of Plaintiff to collect
subsequent payments, assessed at 20% of the preceding
month's income, in any month in which his account exceeds
$10, and forward them to the Court until the entire filing
fee is paid. See 28 U.S.C. § 1915(b)(2).
Plaintiff has neither paid the filing fee required by 28
U.S.C. § 1914(a) to commence a civil action, nor filed a
properly supported Motion to Proceed IFP pursuant to 28
U.S.C. § 1915(a), his case cannot proceed. See
28 U.S.C. § 1914(a); Andrews v. Cervantes, 493
F.3d 1047, 1051 (9th Cir. 2007).
Conclusion and Order
(1) DISMISSES this civil action without
prejudice based on Plaintiff's failure 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
(2) GRANTS Plaintiff forty-five (45) days
leave from the date this Order is filed to: (a) prepay the
entire $400 civil filing and administrative fee in full; or
(b) complete and file a Motion to Proceed IFP which complies
with 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2(b)
for the Southern District of California.
(3) DIRECTS the Clerk of the Court to
provide Plaintiff with the Court's approved form
“Motion and Declaration in Support of Motion to Proceed
In Forma Pauperis” If Plaintiff fails to
either prepay the $400 civil filing fee or fully complete and
submit the enclosed Motion to Proceed IFP within 45 days,
this action will remain dismissed without prejudice based on
his failure to satisfy 28 U.S.C. § 1914(a)'s fee
requirement and without further Order of the Court.