United States District Court, S.D. California
ORDER DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR
FAILING TO PAY FILING FEE REQUIRED BY 28 U.S.C. §
1914(a) AND/OR FAILING TO MOVE TO PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(a)
Anthony J. Battaglia United States District Judge.
Michael Richard Keavney, while incarcerated at the San Diego
Central Jail (“SDCJ”) and proceeding pro se, has
filed a civil right complaint pursuant to 42 U.S.C. §
1983. See Compl, ECF No. 1. Plaintiff alleges the
County of San Diego and two Tri‒City Hospital doctors
violated his constitutional rights by ignoring his pleas for
medical attention in December 2018. Id. at
1‒5. He seeks $1 million in compensatory and punitive
damages. Id. at 7. He has not prepaid the $400 civil
filing fee required by 28 U.S.C. § 1914(a), however, and
has not filed a Motion to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. §
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 IFP pursuant
to 28 U.S.C. § 1915(a). See Andrews v.
Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.
1999). However, the Prison Litigation Reform Act's
(“PLRA”) amendments to § 1915 require that
all prisoners who proceed IFP 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 their 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 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). In support of this
affidavit, the PLRA also requires prisoners to 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). From the certified trust account
statement, 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 the
prisoner 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.
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 yet proceed.
See 28 U.S.C. § 1914(a); Andrews, 493
F.3d at 1051.
Conclusion and Order
(1) DISMISSES this civil action without
prejudice based on Plaintiffs 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
includes a certified copy of his SDCJ trust account
statements for the 6-month period preceding the filing of his
Complaint. See 28 U.S.C. § 1915(a)(2); S.D.
Cal. CivLR 3.2(b).
(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.