Starkey v. Hernandez et al

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). Signed by Judge Janis L. Sammartino on 6/29/2017. ( Court providing Plaintiff with this Court's approved form Motion and Declaration in Support of Motion to Proceed In Forma Pauperis.) (All non-registered users served via U.S. Mail Service) (fth).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:17-cv-01158-JLS-KSC
ADAM MICHAEL STARKEY
AP-1831,

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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)

Plaintiff,
v.
EDWARD HERNANDEZ, et al.,

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Defendants.

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Plaintiff Adam Michael Starkey, currently incarcerated at Centinela State Prison

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located in Imperial, California, and proceeding pro se, has filed a civil rights complaint

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(“Compl.”) (ECF No. 1).

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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

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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 submitted a properly supported Motion to Proceed

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IFP 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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For the reasons set forth above, the Court hereby:

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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 in full; or (b) complete and

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

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

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S.D. Cal. CivLR 3.2(b).

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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.
Dec. 1, 2014)). The additional $50 administrative fee does not apply to persons granted leave to proceed
IFP. Id.
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IT IS FURTHER ORDERED that the Clerk of Court shall provide Plaintiff with

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

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

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

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dismissed 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: June 29, 2017

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