Jones v. Tiscornia

Filing 3

ORDER DISMISSING CASE Sua Sponte without prejudice for failing to pay the filing fee or file a Motion to Proceed IFP. Plaintiff forty-five (45) days 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. Signed by Judge Roger T. Benitez on 8/28/2017.(Sent IFP form to Plaintiff) (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GARLAND AARON JONES,

Case No.: 3:17-cv-01592-BEN- AGS
Plaintiff,

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v.

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MRS. TISCORNIA, Librarian,
Defendant.

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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
FILE TO PROCEED IN FORMA
PAUPERIS PURSUANT TO
28 U.S.C. § 1915(a)

GARLAND AARON JONES ("Plaintiff'), currently incarcerated at Richard J.

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Donovan Correctional Facility located in San Diego, California, and proceeding prose,

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has filed a civil rights complaint ("Compl.") pursuant to 42 U.S.C. § 1983 (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). An action may proceed despite a plaintiffs failure to

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

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

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Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the

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Plaintiff is a prisoner, and even if he is granted leave to commence his suit IFP, he
3:17-cv-01592-BEN-AGS

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remains obligated to pay the entire filing fee in "increments," see Williams v. Paramo,

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775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately

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dismissed. See 28 U.S.C. § 1915(b)(l) & (2); Taylor v. Delatoore, 281F.3d844, 847

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(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

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U.S.C. § 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)

DIS MISSES 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

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

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complete and file a Motion to Proceed IFP which includes a certified copy of his trust

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account statement for the 6-month period preceding the filing of his Complaint. See 28

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U.S.C. § 1915(a)(2); S.D. Cal. CivLR3.2(b).

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

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with this Court's approved form "Motion and Declaration in Support of Motion to

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Proceed In Forma Pauperis." If Plaintiff fails to either prepay the $400 civil filing fee or

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

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remain dismissed without prejudice based on Plaintiffs failure to satisfy 28 U.S.C. §

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the Court.

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3:17-cv-01592-BEN-AGS