Nelson v. Imperial Beach, City of et al

Filing 2

ORDER DISMISSING CASE Without Prejudice for Failing to Pay Filing Fee and/or Proceed In Forma Pauperis. The Court 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 in full; or (b) complete and file a Motion to Proceed IFP. Signed by Judge Gonzalo P. Curiel on 10/4/17.(All non-registered users served via U.S. Mail Service)(IFP Form mailed to Plaintiff) (dlg)

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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-01913-GPC-KSC
ROBERT L. NELSON,
aka JAMAL MYXZ,
Booking No. 17145564 ,

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,

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vs.

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CITY OF IMPERIAL BEACH;
IMPERIAL BEACH SHERIFF’S DEPT.,

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Defendants.

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ROBERT L. NELSON, also known as Jamal Myxz (Plaintiff), proceeding pro se

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and while detained at George Bailey Detention Facility in San Diego, California, has

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filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1).
While his Complaint is devoid of specifics, Plaintiff claims he was “attacked” by

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the Imperial Beach Sheriff’s Department, and has been defamed and detained by them

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through the use of drugged and diseased informants who used “unlawful advantage” to

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“gain entry to [his] residence.” (Id. at 1-3).

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///
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3:17-cv-01913-GPC-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

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

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

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2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1)

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& (2); 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

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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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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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3:17-cv-01913-GPC-KSC

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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. CivLR 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

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

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and 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

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fee requirements and without further Order of the Court.

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IT IS SO ORDERED.
Dated: October 4, 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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