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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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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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.

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Plaintiff Juan Fernando Mejia Banegas, an Immigrations and Customs Enforcement

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detainee incarcerated at the Elroy Detention Center and proceeding pro se, has filed a civil

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right complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Because Plaintiff is in federal

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custody alleging constitutional violations by federal officers the Court will construe his

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Complaint as an action brought pursuant to Bivens v. Six Unknown Named Agents of the

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Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff alleges two Border Patrol

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Officers used excessive force and were deliberately indifferent to his medical needs during

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his apprehension. (Id. at 2-9.) Plaintiff has not prepaid the $400 civil filing fee required

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by 28 U.S.C. § 1914(a) and has not filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a).
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20cv2142-LAB (MSB)

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I.

Failure to Pay Filing Fee or Request IFP Status

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All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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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). Section 1915(a)(2) requires all persons seeking

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to proceed without full prepayment of fees to file an affidavit that includes a statement of

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all assets possessed and demonstrates an inability to pay. See Escobedo v. Applebees, 787

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F.3d 1226, 1234 (9th Cir. 2015).

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Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to

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commence a civil action, nor filed a Motion to Proceed IFP pursuant to 28 U.S.C.

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§ 1915(a), his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at

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1051.

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II.

Conclusion and Order

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Accordingly, the Court:

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(1)

DISMISSES this civil action without prejudice based on Plaintiff’s failure to

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pay the civil filing fee or submit a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a)

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and 1915(a).

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(2)

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

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to: (a) prepay the entire civil filing fee in full; or (b) complete and file a Motion to Proceed

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

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(3)

DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s

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approved form “Motion and Declaration in Support of Motion to Proceed In Forma

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Pauperis.” 1 If Plaintiff fails to either prepay the civil filing fee or fully complete and

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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

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20cv2142-LAB (MSB)

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

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

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requirement and without further Order of the Court.

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IT IS SO ORDERED.

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Dated: March 31, 2021
Hon. Larry A. Burns
United States District Judge

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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).
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20cv2142-LAB (MSB)