Gerald L. Tucker v. Department of Correction et al

Filing 7

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). Signed by Judge Janis L. Sammartino on 7/21/2016.(All non-registered users served via U.S. Mail Service)(IFP Form sent to Plaintiff)(kcm)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

GERALD L. TUCKER, K-93107,

Case No.: 16-CV-1846 JLS (PCL)

Plaintiff,

12
13
14

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)

v.
DEPARTMENT OF CORRECTION;
DANIEL PARAMO,

15

Defendants.

16
17

(ECF No. 1)

18
19

Plaintiff Gerald L. Tucker, currently incarcerated at Richard J. Donovan

20

Correctional Facility located in San Diego, California and proceeding pro se, has filed a

21

civil rights complaint pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Initially

22

Plaintiff filed this action in the Central District of California; however, United States

23

District Judge John F. Walter determined that venue was proper in the Southern District of

24

California and transferred the matter to this Court on July 18, 2016. (ECF No. 4.)

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

///
1
16-CV-1846 JLS (PCL)

1

$400.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to

2

prepay the entire fee only if he is granted leave to proceed in forma pauperis (IFP) pursuant

3

to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);

4

Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a

5

prisoner, and even if he is granted leave to commence his suit IFP, he remains obligated to

6

pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th

7

Cir. 2015), regardless of whether his case is ultimately dismissed, see 28 U.S.C.

8

§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

9

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

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.

12

U.S.C. § 1914(a); Andrews, 493 F.3d at 1051.

13

See 28

CONCLUSION

14

For the reasons set forth above, the Court hereby:

15

(1)

DISMISSES WITHOUT PREJUDICE this action sua sponte for failure to

16

pay the $400 civil filing and administrative fee or to submit a Motion to Proceed IFP

17

pursuant to 28 U.S.C. §§ 1914(a) and 1915(a).

18

(2)

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

19

to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete and

20

file a Motion to Proceed IFP which includes a certified copy of his trust account statement

21

for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2);

22

Civ. L.R. 3.2(b). If Plaintiff fails to either prepay the $400 civil filing fee or complete and

23

submit the enclosed Motion to Proceed IFP within 45 days, this action will remain

24

dismissed without prejudice based on Plaintiff’s failure to satisfy 28 U.S.C. § 1914(a)’s fee

25
26
1

27
28

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 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.
2
16-CV-1846 JLS (PCL)

1
2

requirements and without further Order of the Court.
(3)

ORDERS the Clerk of the Court to provide Plaintiff with this Court’s

3

approved form “Motion and Declaration in Support of Motion to Proceed In Forma

4

Pauperis.”

5

IT IS SO ORDERED.

6
7

Dated: July 21, 2016

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
16-CV-1846 JLS (PCL)