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 $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) (dlg).

Case 3:20-cv-01969-BAS-MDD Document 2 Filed 10/14/20 PageID.26 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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ORDER DISMISSING ACTION
WITHOUT PREJUDICE AND
GRANTING LEAVE TO PREPAY
FILING FEE OR MOVE FOR IN
FORMA PAUPERIS STATUS

v.

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Case No. 20-cv-1969-BAS-MDD

SAUL VELASQUEZ JR.,

SEAMON, et al.
Defendants.

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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.)
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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

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

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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,

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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 entire

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

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regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2);

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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 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 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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For the reasons set forth above, the Court hereby:

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(1) DISMISSES this action sua sponte without prejudice for failure to pay the $400

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civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 28

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U.S.C. §§ 1914(a) and 1915(a); and
(2) GRANTS Plaintiff forty-five (45) days leave from the date of this Order:

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

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(b) complete and file a Motion to Proceed IFP which includes a certified copy

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of his trust account statement for the 6-month period preceding the filing

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of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b).

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Plaintiff’s payment or motion must be received by the Court on or before November 30,

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2020.

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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 Proceed

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

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§ 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to
proceed IFP. Id.

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and submit the enclosed Motion to Proceed IFP on or before November 30, 2020, this

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action will remain dismissed without prejudice based on Plaintiff’s failure to satisfy 28

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U.S.C. § 1914(a)’s fee requirements and without further Order of the Court.

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IT IS SO ORDERED.

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DATED: October 13, 2020

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