Schmitt v. U.S. Marshal Service et al

Filing 2

ORDER DISMISSING CIVIL CASE Action Without Prejudice for Failing to Either Pay Filing Fee Required Or Move to Proceed In Forma Pauperis. It is ordered that the Court dismisses this action sua sponte without prejudice for 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); and 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; 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. See 28 U.S.C. § 1915(a)( 2); S.D. Cal. Civ. L.R. 3.2(b). If Plaintiff fails to either prepay the $400 civil filing fee or complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will remain dismissed without prejudice based on Plaintiff� 39;s failure to satisfy 28 U.S.C. § 1914(a)'s fee requirements and without further Order of the Court. Signed by Judge Janis L. Sammartino on 8/1/2017.(All non-registered users served via U.S. Mail Service) (Motion to Proceed IFP Mailed)(dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17cv817-JLS (KSC)
MICHAEL SCHMITT,
CDCR #BB-8941,

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Plaintiff,

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ORDER DISMISSING CIVIL
ACTION WITHOUT PREJUDICE
FOR FAILING TO EITHER PAY
FILING FEE REQUIRED
BY 28 U.S.C. § 1914(a) OR MOVE TO
PROCEED IN FORMA PAUPERIS
PURSUANT TO
28 U.S.C. § 1915(a)

v.
U.S. MARSHAL SERVICE;
AGENT WALKER, Fugitive Task Force,
Defendants.

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Plaintiff Michael Schmitt, proceeding pro se while incarcerated at North Kern State

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Prison in Delano, California, has filed a civil action using a “Standard Form 95” “Claim

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for Damage, Injury or Death” pursuant to the Federal Tort Claims Act, 28 U.S.C. §§

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1346(b), 2671–80.

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Plaintiff claims the U.S. Marshal Service and a Fugitive Task Force Agent named

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Walker caused $750 in property damage by breaking a door and locks when entering his

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home at 1425 14th Street in San Diego to arrest him on a “County Probation Violations

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Warrant” on November 2, 2016. (ECF No. 1.)
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17cv817-JLS (KSC)

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I.

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Failure to Pay Filing Fee or Request IFP Status
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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

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if he is granted leave to commence his suit IFP, he remains obligated to pay the entire filing

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fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015),

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regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2);

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Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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

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commence this civil action, nor has he filed a properly supported Motion to Proceed IFP

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pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C.

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§ 1914(a); Andrews, 493 F.3d at 1051.

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II.

Conclusion and Order

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Accordingly, the Court:

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(1)

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

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

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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 filed

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

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

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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.
June 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed
IFP. Id.
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17cv817-JLS (KSC)

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

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Cal. Civ. L.R. 3.2(b).

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The Court further DIRECTS the Clerk of the Court to provide Plaintiff with the

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

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Pauperis.”2 If Plaintiff fails to either prepay the $400 civil filing fee or complete and submit

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

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

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requirements and without further Order of the Court.

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IT IS SO ORDERED.
Dated: August 1, 2017

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Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full $400 civil filing
fee, or submitting a properly supported Motion to Proceed IFP, his Complaint will be reviewed before
service and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C.
§ 1915(e)(2)(B), regardless of whether he pays or is obligated to pay filing fees. See Lopez v. Smith, 203
F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but
requires” the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, fails
to state a claim, or seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621
F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all
complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a
governmental entity”).
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17cv817-JLS (KSC)