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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 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, 14 15 vs. 16 CITY OF IMPERIAL BEACH; IMPERIAL BEACH SHERIFF’S DEPT., 17 Defendants. 18 19 20 ROBERT L. NELSON, also known as Jamal Myxz (Plaintiff), proceeding pro se 21 and while detained at George Bailey Detention Facility in San Diego, California, has 22 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 23 24 the Imperial Beach Sheriff’s Department, and has been defamed and detained by them 25 through the use of drugged and diseased informants who used “unlawful advantage” to 26 “gain entry to [his] residence.” (Id. at 1-3). 27 /// 1 3:17-cv-01913-GPC-KSC 1 I. 2 Failure to Pay Filing Fee or Request IFP Status All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a prisoner, and 8 even if he is granted leave to commence his suit IFP, he remains obligated to pay the 9 entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 10 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) 11 & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Plaintiff has not prepaid the $400 in filing and administrative fees required to 13 commence this civil action, nor has he filed a properly supported Motion to Proceed IFP 14 pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 15 § 1914(a); Andrews, 493 F.3d at 1051. 16 II. Conclusion and Order 17 Accordingly, the Court: 18 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 19 $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 20 28 U.S.C. §§ 1914(a) and 1915(a); and 21 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 22 filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) 23 complete and file a Motion to Proceed IFP which includes a certified copy of his trust 24 25 26 27 1 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. 2 3:17-cv-01913-GPC-KSC 1 account statement for the 6-month period preceding the filing of his Complaint. See 28 2 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 3 The Court further DIRECTS the Clerk of the Court to provide Plaintiff with the 4 Court’s approved form “Motion and Declaration in Support of Motion to Proceed In 5 Forma Pauperis.”2 If Plaintiff fails to either prepay the $400 civil filing fee or complete 6 and submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 7 dismissed without prejudice based on Plaintiff’s failure to satisfy 28 U.S.C. § 1914(a)’s 8 fee requirements and without further Order of the Court. 9 10 IT IS SO ORDERED. Dated: October 4, 2017 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 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.”). 3 3:17-cv-01913-GPC-KSC

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