Carroll v. California Department of Corrections

          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

          HON. CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE.

         Abonilico 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).

         I. Failure to Pay Filing Fee or Request IFP Status

         All 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).^[1] 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).

         Plaintiff 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.

         Plaintiff 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).

         Because 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).

         II. Conclusion and Order

         Accordingly, the Court:

(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 1915(a).

(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.

         IT ...