Rew v. German

Filing 2

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). The Court Grants Plaintiff forty five (45) day s 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 trust account statement. If Plaintiff fails to either prepay the $400 civil filing fee or complete and submit the enclosed Motion to Proceed IFP within that time, this action will remain dismissed without prejudice for failing to satisfy 28 U.S.C. § 1914(a)'s fee requirements and without further Order of the Court. Signed by Judge Barry Ted Moskowitz on 2/5/2015.(All non-registered users served via U.S. Mail Service t/w Motion to Proceed IFP form)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TREVIYON DeSHAWN REW,
CDCR #AT-3076,

Civil No.
Plaintiff,

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vs.

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SAN DIEGO SHERIFF DEPUTY
GERMAN,
Defendant.

14cv2987 BTM (JLB)

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)

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Treviyon DeShawn Rew (“Plaintiff”), a state inmate currently incarcerated at

21 California State Prison in Lancaster, California (“LAC”), and proceeding pro se, has
22 filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. No. 1).
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Plaintiff claims that while he was detained at the San Diego Central Jail on April

24 12, 2014, a County Sheriff’s Department Deputy used excessive force against him during
25 a weekend hygiene inspection. See Compl. at 3. He seeks both injunctive relief and $3.1
26 million in damages. Id. at 7.
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14cv2987 BTM (JLB)

1 I.

Failure to Pay Filing Fee or Request IFP Status

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All parties instituting any civil action, suit or proceeding in a district court of the

3 United States, except an application for writ of habeas corpus, must pay a filing fee of
4 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to
5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez
7 v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a prisoner and
8 he is granted leave to proceed IFP, he remains obligated to pay the entire fee in
9 “increments,” see Williams v. Paramo, __ F.3d __, 2015 WL 74144 at *1 (9th Cir. 2015),
10 regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) &
11 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

Plaintiff has not prepaid the $400 in filing and administrative fees required to

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13 commence a civil action, nor has he submitted a Motion to Proceed IFP pursuant to 28
14 U.S.C. § 1915(a). Therefore, the case cannot yet proceed. See 28 U.S.C. § 1914(a);
15 Andrews, 493 F.3d at 1051.
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Conclusion and Order

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For the reasons set forth above, the Court hereby:

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(1)

DISMISSES this action sua sponte without prejudice for failing to pay the

19 $400 civil filing and administrative fee or submit a Motion to Proceed IFP pursuant to
20 28 U.S.C. §§ 1914(a) and 1915(a); and
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(2)

GRANTS Plaintiff forty five (45) days leave from the date this Order is

22 filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or
23 (b) complete and file a Motion to Proceed IFP which includes a certified copy of his trust
24 account statement for the 6-month period preceding the filing of his Complaint. See 28
25 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b).
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In addition to the $350 statutory fee, all parties filing civil actions on or after

27 May 1, 2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a)
(Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule) (eff. May 1,
28 2013). However, the additional $50 administrative fee is waived if the plaintiff is

granted leave to proceed IFP. Id.

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14cv2987 BTM (JLB)

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IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff

2 with this Court’s approved form “Motion and Declaration in Support of Motion to
3 Proceed In Forma Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee
4 or complete and submit the enclosed Motion to Proceed IFP within that time, this action
5 will remain dismissed without prejudice for failing to satisfy 28 U.S.C. § 1914(a)’s fee
6 requirements and without further Order of the Court.
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DATED: February 5, 2015
BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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14cv2987 BTM (JLB)