United States District Court, S.D. California
MARVIN D. GILLIAM, Inmate Booking No. 19751724, Plaintiff,
COUNTY OF SAN DIEGO; WILLIAM D. GORE; CAPTAIN BUCHANAN, 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
Cathy Ann Bencivengo United States District Judge
D. Gilliam (“Plaintiff”), currently housed at the
George Bailey Detention Facility located in San Diego,
California and proceeding pro se, has filed this civil rights
action (“Compl.”) pursuant to 42 U.S.C. §
1983. See ECF No. 1.
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. §
Failure to Pay Filing Fee or Request IFP
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, ” see Williams v. Paramo,
775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether
his case is ultimately dismissed. See 28 U.S.C.
§ 1915(b)(1) & (2); 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 (a) the average monthly deposits in
Plaintiff's 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), (4);
Taylor, 281 F.3d at 850. After, the Court will
direct the institution having custody 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 yet proceed.
See 28 U.S.C. § 1914(a); Andrews, 493
F.3d at 1051.
Conclusion and Order
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).
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 S.D. Cal. CivLR
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 ...