Opinion
21-CV-1011 JLS (DEB)
06-29-2021
MARCELO LARIOS FERNANDEZ, Inmate # 87515-298, Plaintiff, v. METROPOLITAN CORRECTIONAL CENTER, Defendant.
ORDER DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILING TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) AND/OR FAILING TO FILE PROPERLY SUPPORTED MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a)
Janis L. Sammartino, United States District Judge
Plaintiff Marcelo Larios Fernandez (“Plaintiff”), currently incarcerated at the Metropolitan Correctional Center (“MCC”) in San Diego, California, is proceeding pro se in this action brought pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”).
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 $402. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed in forma pauperis (“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). However, if the Plaintiff is a prisoner, even if he is granted leave to commence his suit IFP, he remains obligated to pay the entire filing fee in “increments, ” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately dismissed, see 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed IFP. Id.
Plaintiff filed this case on May 26, 2021. See generally Compl. At that time, Plaintiff did not pay the $402 civil and administrative filing fee or file a Motion to Proceed IFP. Subsequently, on June 23, 2021, Plaintiff submitted a Motion to Proceed IFP, but without attaching the certified copies of Plaintiff's trust account statements “for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of [the] prison at which [Plaintiff] is . . . confined, ” as required by 28 U.S.C. § 1915(a)(2) See generally ECF No. 2 (“IFP Mot.”). Without copies of Plaintiff's trust account statements from the relevant period, the Court cannot assess what, if any, partial filing fee may be required by 28 U.S.C. § 1915(b)(1). Accordingly, Plaintiff's case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051.
CONCLUSION
For the reasons set forth above, the Court hereby:
(1) DISMISSES this action sua sponte WITHOUT PREJUDICE for failure to pay the $402 civil filing and administrative fee or to submit a properly supported Motion to Proceed in Forma Pauperis pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and
(2) GRANTS Plaintiff forty-five (45) days' leave from the date on which this Order is electronically docketed to either: (a) prepay the entire $402 civil filing and administrative fee in full, or (b) “submit a certified copy of the trust fund account statement (or institutional equivalent) for [Plaintiff] for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of [the] prison at which [Plaintiff] is . . . confined.” See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b).
IT IS FURTHER ORDERED that if Plaintiff fails to either prepay the $402 civil filing and administrative fee or submit the necessary certified copies of his trust account statements within 45 days, this action will remain dismissed without prejudice and without further Order of the Court based on Plaintiffs failure to satisfy the fee requirements of 28 U.S.C. § 1914(a).
IT IS SO ORDERED.