Opinion
Case No.: 20cv2142-LAB (MSB)
03-31-2021
JUAN FERNANDO MEJIA BANEGAS, Booking #201237255, Plaintiffs, v. MICHAEL MANSFIELD, et al., Defendants.
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)
Plaintiff Juan Fernando Mejia Banegas, an Immigrations and Customs Enforcement detainee incarcerated at the Elroy Detention Center and proceeding pro se, has filed a civil right complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Because Plaintiff is in federal custody alleging constitutional violations by federal officers the Court will construe his Complaint as an action brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff alleges two Border Patrol Officers used excessive force and were deliberately indifferent to his medical needs during his apprehension. (Id. at 2-9.) Plaintiff has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a) and has not filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a).
I. 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). The action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 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 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015).
Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to commence a civil action, nor filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051.
II. Conclusion and Order
Accordingly, the Court:
(1) DISMISSES this civil action without prejudice based on Plaintiff's failure to pay the civil filing fee or submit a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a).
(2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed to: (a) prepay the entire civil filing fee in full; or (b) complete and file a Motion to Proceed IFP. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b).
(3) DIRECTS the Clerk of the Court to provide Plaintiff with the Court's approved form "Motion and Declaration in Support of Motion to Proceed In Forma Pauperis." If Plaintiff fails to either prepay the civil filing fee or fully complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will remain dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)'s fee requirement and without further Order of the Court.
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). --------
IT IS SO ORDERED. Dated: March 31, 2021
/s/_________
Hon. Larry A. Burns
United States District Judge