Jennings v. Polanco et al
Filing
2
ORDER DISMISSING CASE without prejudice for failure to pay the $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to28 U.S.C. §§ 1914(a) and 1915(a); the court grants Plaintiff forty-five (45) days l eave 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 for the 6-month period preceding the filing of his Complaint. Signed by Judge Larry Alan Burns on 4/27/15. (All non-registered users served via U.S. Mail Service)(motion for ifp mailed to plaintiff)(kas)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
12
BRIAN JENNINGS,
CDCR #AU-2511,
Civil No.
Plaintiff,
13
14
vs.
15
16
17
JUSTIN POLANCO, M.D., et al.,
18
15-cv-0890 LAB (BGS)
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)
Defendants.
19
20
21
Brian Jennings (“Plaintiff”), currently incarcerated at the California Correctional
22 Institution located in Tehachapi, California, and proceeding pro se, has filed a civil rights
23 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1).
24 I.
Failure to Pay Filing Fee or Request IFP Status
25
All parties instituting any civil action, suit or proceeding in a district court of the
26 United States, except an application for writ of habeas corpus, must pay a filing fee of
27 / / /
28 / / /
I:\Everyone\_EFILE-PROSE\LAB\15cv0890-dsm-no-pay-IFP.wpd
-1-
15-cv-0890-LAB-BGS
1 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to
2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a prisoner, and
5 even if he is granted leave to commence his suit IFP, he remains obligated to pay the
6 entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir.
7 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1)
8 & (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
9
10 commence this civil action, nor has he submitted a properly supported Motion to Proceed
11 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28
12 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051.
13 II.
Conclusion and Order
14
For the reasons set forth above, the Court hereby:
15
(1)
DISMISSES this action sua sponte without prejudice for failure to pay the
16 $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to
17 28 U.S.C. §§ 1914(a) and 1915(a); and
18
(2)
19 filed to:
GRANTS Plaintiff forty-five (45) days leave from the date this Order is
(a) prepay the entire $400 civil filing and administrative fee in full; or
20 (b) complete and file a Motion to Proceed IFP which includes a certified copy of his trust
21 account statement for the 6-month period preceding the filing of his Complaint. See 28
22 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b).
23
IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff
24 with this Court’s approved form “Motion and Declaration in Support of Motion to
25 Proceed In Forma Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or
26
27
1
In addition to the $350 statutory fee, civil litigants must pay an additional
administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of
28 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50
administrative fee does not apply to persons granted leave to proceed IFP. Id.
I:\Everyone\_EFILE-PROSE\LAB\15cv0890-dsm-no-pay-IFP.wpd
-2-
15-cv-0890-LAB-BGS
1 complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will
2 remain dismissed without prejudice based on Plaintiff’s failure to satisfy 28 U.S.C.
3 § 1914(a)’s fee requirements and without further Order of the Court.
4
IT IS SO ORDERED.
5
6 DATED: April 27, 2015
7
HONORABLE LARRY ALAN BURNS
United States District Judge
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I:\Everyone\_EFILE-PROSE\LAB\15cv0890-dsm-no-pay-IFP.wpd
-3-
15-cv-0890-LAB-BGS
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?