Velasquez v. Seamon et al

Filing 2

ORDER DISMISSING Action Without Prejudice and Granting Leave to Prepay Filing Fee or Move for In Forma Pauperis Status. Plaintiff's payment or motion must be received by the Court on or before 11/30/20. If Plaintiff fails to either prepay the &# 036;400 civil filing fee or complete and submit the enclosed Motion to Proceed IFP on or before11/30/20, this action will remain dismissed without prejudice based on Plaintiffs failure to satisfy 28 U.S.C. § 1914(a)s fee requirements and without further Order of the Court. Signed by Judge Cynthia Bashant on 10/13/20.(All non-registered users served via U.S. Mail Service with order and IFP application)(jmo)

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Case 3:20-cv-01969-BAS-MDD Document 2 Filed 10/14/20 PageID.26 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Plaintiff, 12 ORDER DISMISSING ACTION WITHOUT PREJUDICE AND GRANTING LEAVE TO PREPAY FILING FEE OR MOVE FOR IN FORMA PAUPERIS STATUS v. 13 14 Case No. 20-cv-1969-BAS-MDD SAUL VELASQUEZ JR., SEAMON, et al. Defendants. 15 16 17 18 19 20 21 22 23 24 25 Plaintiff Saul Velasquez, Jr., currently incarcerated at California State Prison, Sacramento, and proceeding pro se, has filed this civil rights action alleging that he received inadequate medical care while incarcerated at the R.J. Donovan Correctional Facility, located in San Diego, California. (ECF No. 1.) I. Failure to Pay Filing Fee or Request IFP Status All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). 1 An action may proceed despite a plaintiff’s failure to 26 27 1 28 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, -120cv1969 Case 3:20-cv-01969-BAS-MDD Document 2 Filed 10/14/20 PageID.27 Page 2 of 3 1 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 2 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 3 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a prisoner, and 4 even if he is granted leave to commence his suit IFP, he remains obligated to pay the entire 5 filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 6 regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); 7 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 8 Plaintiff has not prepaid the $400 in filing and administrative fees required to 9 commence this civil action, nor has he submitted a properly supported Motion to Proceed 10 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 11 § 1914(a); Andrews, 493 F.3d at 1051. 12 II. Conclusion and Order 13 For the reasons set forth above, the Court hereby: 14 (1) DISMISSES this action sua sponte without prejudice for failure to pay the $400 15 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 28 16 U.S.C. §§ 1914(a) and 1915(a); and (2) GRANTS Plaintiff forty-five (45) days leave from the date of this Order: 17 18 (a) prepay the entire $400 civil filing and administrative fee in full; or 19 (b) complete and file a Motion to Proceed IFP which includes a certified copy 20 of his trust account statement for the 6-month period preceding the filing 21 of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 22 Plaintiff’s payment or motion must be received by the Court on or before November 30, 23 2020. 24 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 25 with this Court’s approved form, “Motion and Declaration in Support of Motion to Proceed 26 In Forma Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or complete 27 28 § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. -220cv1969 Case 3:20-cv-01969-BAS-MDD Document 2 Filed 10/14/20 PageID.28 Page 3 of 3 1 and submit the enclosed Motion to Proceed IFP on or before November 30, 2020, this 2 action will remain dismissed without prejudice based on Plaintiff’s failure to satisfy 28 3 U.S.C. § 1914(a)’s fee requirements and without further Order of the Court. 4 IT IS SO ORDERED. 5 6 DATED: October 13, 2020 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -320cv1969

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