Banegas v. Mansfield et al

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 grants Plaintiff forty-five (45) days leave from the date this Order is filed to prepay the entire civil filing fee in full; or complete and file a Motion to Proceed IFP. Signed by Judge Larry Alan Burns on 3/31/2021.(All non-registered users served via U.S. Mail Service; IFP form mailed to Plaintiff)(jmr)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JUAN FERNANDO MEJIA BANEGAS, Booking #201237255, Case No.: 20cv2142-LAB (MSB) 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) Plaintiffs, vs. MICHAEL MANSFIELD, et al., Defendants. 17 18 19 Plaintiff Juan Fernando Mejia Banegas, an Immigrations and Customs Enforcement 20 detainee incarcerated at the Elroy Detention Center and proceeding pro se, has filed a civil 21 right complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Because Plaintiff is in federal 22 custody alleging constitutional violations by federal officers the Court will construe his 23 Complaint as an action brought pursuant to Bivens v. Six Unknown Named Agents of the 24 Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff alleges two Border Patrol 25 Officers used excessive force and were deliberately indifferent to his medical needs during 26 his apprehension. (Id. at 2-9.) Plaintiff has not prepaid the $400 civil filing fee required 27 by 28 U.S.C. § 1914(a) and has not filed a Motion to Proceed In Forma Pauperis (“IFP”) 28 pursuant to 28 U.S.C. § 1915(a). 1 20cv2142-LAB (MSB) 1 I. Failure to Pay Filing Fee or Request IFP Status 2 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). The 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). Section 1915(a)(2) requires all persons seeking 8 to proceed without full prepayment of fees to file an affidavit that includes a statement of 9 all assets possessed and demonstrates an inability to pay. See Escobedo v. Applebees, 787 10 F.3d 1226, 1234 (9th Cir. 2015). 11 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 12 commence a civil action, nor filed a Motion to Proceed IFP pursuant to 28 U.S.C. 13 § 1915(a), his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 14 1051. 15 II. Conclusion and Order 16 Accordingly, the Court: 17 (1) DISMISSES this civil action without prejudice based on Plaintiff’s failure to 18 pay the civil filing fee or submit a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) 19 and 1915(a). 20 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 21 to: (a) prepay the entire civil filing fee in full; or (b) complete and file a Motion to Proceed 22 IFP. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 23 (3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 24 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 25 Pauperis.” 1 If Plaintiff fails to either prepay the civil filing fee or fully complete and 26 27 28 Plaintiff is cautioned that if he chooses to proceed further by submitting a properly supported Motion to Proceed IFP, his Complaint will be screened before service and may 1 2 20cv2142-LAB (MSB) 1 submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 2 dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 3 requirement and without further Order of the Court. 4 IT IS SO ORDERED. 5 6 7 8 Dated: March 31, 2021 Hon. Larry A. Burns United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b). 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). 3 20cv2142-LAB (MSB)

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