Jimmy Simeona Malo v. Hernandez et al

Filing 8

ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAILURE TO PAY INITIAL PARTIAL FILING FEE by Magistrate Judge Jean P. Rosenbluth. Response to Order to Show Cause due by 12/23/2013. (wr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JIMMY MALO,

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Plaintiff,

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vs.

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MR. HERNANDEZ et al.,

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Defendants.

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Case No. EDCV 13-1781-SJO (JPR)
ORDER TO SHOW CAUSE RE DISMISSAL
FOR FAILURE TO PAY INITIAL
PARTIAL FILING FEE

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On October 10, 2013, Plaintiff was granted permission

17 pursuant to 28 U.S.C. § 1915(b)(1) to file the above-referenced
18 action without paying the full filing fee of $350.00, but he was
19 ordered to pay an initial partial filing fee, in the amount of
20 $32.70, within 30 days to the Clerk of Court.

To date, the

21 payment has not been received.
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Under the Prison Litigation Reform Act, all prisoners who

23 are granted in forma pauperis status to file their civil rights
24 actions must nonetheless pay the full amount of the filing fee.
25 Id.

For prisoners unable to pay the filing fee at the time of

26 filing, the statute provides for the assessment and, “when funds
27 exist,” the collection of an initial fee equal to 20 percent of
28 the greater of the prisoner’s average monthly account balance or
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1 monthly deposits for “the 6-month period immediately preceding
2 the filing of the complaint or notice of appeal.”

Id.

After

3 payment of the initial fee, the prisoner must make monthly
4 payments equal to 20 percent of the preceding month’s income
5 credited to the account, to be forwarded when the prisoner’s
6 account balance exceeds $10.

§ 1915(b)(2).

Under the PLRA’s

7 “safety-valve” provision, a prisoner cannot “be prohibited from
8 bringing a civil action . . . for the reason that the prisoner
9 has no assets and no means by which to pay the initial partial
10 filing fee.”
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§ 1915(b)(4).

Under the safety-valve provision, a court may not dismiss

12 the lawsuit of a prisoner whose funds become depleted after the
13 initial partial filing fee is assessed and who can no longer pay.
14 Taylor v. Delatoore, 281 F.3d 844, 850-51 (9th Cir. 2002).

In

15 all other circumstances, however, a court may dismiss a
16 prisoner’s civil rights action for failure to pay the initial
17 partial filing fee (or indeed any portion of the full fee).

See

18 Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (upholding
19 dismissal of action for failure to pay initial partial filing fee
20 when prisoner had enough money to buy “name brand toiletries” and
21 snacks).
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Plaintiff has not complied with § 1915(b)(1) and is hereby

23 ORDERED TO SHOW CAUSE why this action should not be dismissed for
24 Plaintiff’s failure to timely pay the initial partial filing fee.
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Plaintiff must file a response to this Order to Show Cause

26 no later than 20 days from the date of this Order.

Failure to

27 file a response within the time specified may result in the
28 dismissal of this action.

If the initial partial filing fee is
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1 received by the Court within the 20-day period, no further
2 response to this Order to Show Cause is necessary.
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4 DATED: December 2, 2013
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___________________________________
JEAN P. ROSENBLUTH
U.S. MAGISTRATE JUDGE

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