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) (jms).

Case 3:20-cv-02192-MMA-DEB Document 3 Filed 11/17/20 PageID.8 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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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,

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vs.

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Case No. 20cv2192-MMA (DEB)

C.O. QUILLEN, et al.,
Defendants.

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Plaintiff Michael Dewayne Allen, a state prisoner incarcerated at the R.J. Donovan

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Correctional Facility proceeding pro se, has filed a civil right complaint pursuant to 42

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U.S.C. § 1983. See Doc. No. 1. Plaintiff has not prepaid the $400 civil filing fee

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

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).

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I.

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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

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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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20cv2192-MMA (DEB)

Case 3:20-cv-02192-MMA-DEB Document 3 Filed 11/17/20 PageID.9 Page 2 of 3

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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, the Prison Litigation Reform Act’s

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(“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the

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entire fee in “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct.

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627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and

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regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) &

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(2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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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

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demonstrates an inability to pay. See Escobedo v. Applebee’s, 787 F.3d 1226, 1234 (9th

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Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the

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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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monthly deposits in the account for the past six months, or (b) the average monthly

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balance in the account for the past six months, whichever is greater, unless the prisoner

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

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custody of the prisoner then collects subsequent payments, assessed at 20% of the

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preceding month’s income, in any month in which his account exceeds $10, and forwards

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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);

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Bruce, 136 S. Ct. at 629.

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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 proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051.

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//

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//

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//
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20cv2192-MMA (DEB)

Case 3:20-cv-02192-MMA-DEB Document 3 Filed 11/17/20 PageID.10 Page 3 of 3

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II.

Conclusion and Order

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Accordingly, the Court:

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(1)

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

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the filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and

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1915(a).

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(2)

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

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

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Proceed 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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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.
DATE: November 17, 2020

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HON. MICHAEL M. ANELLO
United States District Judge

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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 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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20cv2192-MMA (DEB)