Allen v. Quillen et al

Filing 3

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).. Signed by Judge Michael M. Anello on 11/17/2020. (All non-registered users served via U.S. Mail Service and Plaintiff mailed blank IFP form.) (tcf)

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Case 3:20-cv-02192-MMA-DEB Document 3 Filed 11/17/20 PageID.8 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 MICHAEL DEWAYNE ALLEN, CDCR#T-55834, 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, 13 vs. 14 15 Case No. 20cv2192-MMA (DEB) C.O. QUILLEN, et al., Defendants. 16 17 18 19 Plaintiff Michael Dewayne Allen, a state prisoner incarcerated at the R.J. Donovan 20 Correctional Facility proceeding pro se, has filed a civil right complaint pursuant to 42 21 U.S.C. § 1983. See Doc. No. 1. Plaintiff has not prepaid the $400 civil filing fee 22 required by 28 U.S.C. § 1914(a) and has not filed a Motion to Proceed In Forma 23 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 24 I. 25 Failure to Pay Filing Fee or Request IFP Status All parties instituting any civil action, suit or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 28 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 1 20cv2192-MMA (DEB) Case 3:20-cv-02192-MMA-DEB Document 3 Filed 11/17/20 PageID.9 Page 2 of 3 1 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 2 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s 3 (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the 4 entire fee in “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 5 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and 6 regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 7 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 8 9 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment of fees to file an affidavit that includes a statement of all assets possessed and 10 demonstrates an inability to pay. See Escobedo v. Applebee’s, 787 F.3d 1226, 1234 (9th 11 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a 12 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 13 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 14 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 15 trust account statement, the Court assesses an initial payment of 20% of (a) the average 16 monthly deposits in the account for the past six months, or (b) the average monthly 17 balance in the account for the past six months, whichever is greater, unless the prisoner 18 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 19 custody of the prisoner then collects subsequent payments, assessed at 20% of the 20 preceding month’s income, in any month in which his account exceeds $10, and forwards 21 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 22 Bruce, 136 S. Ct. at 629. 23 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 24 commence a civil action, nor filed a Motion to Proceed IFP pursuant to 28 U.S.C. 25 § 1915(a), his case cannot proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 26 // 27 // 28 // 2 20cv2192-MMA (DEB) Case 3:20-cv-02192-MMA-DEB Document 3 Filed 11/17/20 PageID.10 Page 3 of 3 1 II. Conclusion and Order 2 Accordingly, the Court: 3 (1) DISMISSES this action without prejudice based on Plaintiff’s failure to pay 4 the filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 5 1915(a). 6 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 7 filed to: (a) prepay the entire civil filing fee in full; or (b) complete and file a Motion to 8 Proceed IFP. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 9 (3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court’s 10 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 11 Pauperis.” 1 If Plaintiff fails to either prepay the civil filing fee or fully complete and 12 submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 13 dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee 14 requirement and without further Order of the Court. 15 16 IT IS SO ORDERED. DATE: November 17, 2020 17 HON. MICHAEL M. ANELLO United States District Judge 18 19 20 21 22 23 24 25 26 27 28 1 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 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 20cv2192-MMA (DEB)

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