Contreras v. Herrera

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). The Court dismisses this action sua sponte wi thout 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 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 which includes a certified copy of his prison trust account statements for the 6-month period preceding the filing of his C omplaint. The Court further directs the Clerk of the Court to provide Plaintiff with the Court's approved form "Motion and Declaration in Support of Motion to Proceed In Forma Pauperis." If Plaintiff fails to either prepay the $40 0 civil filing fee or fully complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will remain dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)'s fee requirement and without further Order of the Court. Signed by Judge Michael M. Anello on 4/23/2018.(All non-registered users served via U.S. Mail Service)(rmc)(Blank IFP form mailed)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

MIGUEL CONTRERAS,
CDCR #K-71716,

Case No.: 3:18-cv-00717-MMA-AGS
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,
vs.
J. HERRERA, Correctional Officer,
Defendant.

17
18
19
20

MIGUEL CONTRERAS (“Plaintiff”), currently incarcerated at California State

21

Prison in Corcoran, California, and proceeding pro se, has filed a civil rights complaint

22

pursuant to 42 U.S.C. § 1983. See Compl. (Doc. No. 1).

23

Plaintiff claims a correctional officer at Richard J. Donovan Correctional Facility

24

violated his Eighth and Fourteenth Amendment rights by falsely accusing him of sexual

25

misconduct during a visit with his wife and daughter while he was incarcerated there in

26

December 2016. Id. at 1-5. Plaintiff seeks compensatory and punitive damages, as well as

27

declaratory and injunctive relief expunging the disciplinary conviction and restoring the

28

visitation privileges he lost as a result of the violation. Id. at 5.
1
3:18-cv-00717-MMA-AGS

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). An action may proceed despite a plaintiff’s failure to

5

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

6

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

7

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

8

Plaintiff is a prisoner at the time of filing, as Plaintiff is here, and even if he is granted

9

leave to commence his suit IFP, he will remain obligated to pay the entire filing fee in

10

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

11

regardless of whether his case is dismissed for any other reason. See 28 U.S.C.

12

§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

13

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

14

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

15

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

16

§ 1914(a); Andrews, 493 F.3d at 1051.

17

II.

Conclusion and Order

18

Accordingly, the Court:

19

(1)

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

20

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

21

28 U.S.C. §§ 1914(a) and 1915(a); and

22

(2)

GRANTS Plaintiff forty-five (45) days leave from the date this Order is

23

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

24

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

25

trust account statements for the 6-month period preceding the filing of his Complaint. See

26

28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b).

27
28

The Court further DIRECTS the Clerk of the Court to provide Plaintiff with the
Court’s approved form “Motion and Declaration in Support of Motion to Proceed In
2
3:18-cv-00717-MMA-AGS

1

Forma Pauperis.”1 If Plaintiff fails to either prepay the $400 civil filing fee or fully

2

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

3

remain dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s

4

fee requirement and without further Order of the Court.

5
6

IT IS SO ORDERED.
DATE: April 23, 2018

7

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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 the
full $400 filing fee at once, or is granted IFP status and is obligated to pay the full filing
fee in installments. 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.”).
1

3
3:18-cv-00717-MMA-AGS