1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:21-cv-1529-BAS-AGS TONY L. SIMS, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE v. FOR FAILING TO PAY 14 FILING FEE REQUIRED CALIFORNIA DEPARTMENT 15 BY

(a) AND/OR OF CORRECTIONS AND FAILING TO MOVE TO PROCEED 16 REHABILITATION, IN FORMA PAUPERIS 17 Defendant. PURSUANT TO

(a) 18

19 20 TONY L. SIMS (“Plaintiff”), currently incarcerated at California City Correctional 21 Facility located in California City, California, and proceeding pro se, has filed a Petition 22 for Writ of Mandamus and Complaint. (ECF No. 1). Plaintiff has not prepaid the $402 23 civil filing fee required by

(a), however, and has not filed a Motion to 24 Proceed In Forma Pauperis (“IFP”) pursuant to

(a). 25 26 I. Failure to Pay Filing Fee or Request IFP Status 27 All parties instituting any civil action, suit or proceeding in a district court of the 1 United States, except an application for writ of habeas corpus, must pay a filing fee of 2 $402. See

(a).1 An action may proceed despite a plaintiff’s failure to 3 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 4 § 1915(a). See Andrews v. Cervantes,

(9th Cir. 2007); Rodriguez v. 5 Cook,

(9th Cir. 1999). However, if the Plaintiff is a prisoner, and 6 even if he is granted leave to commence his suit IFP, he remains obligated to pay the entire 7 filing fee in “increments,” see Williams v. Paramo,

(9th Cir. 2015), 8 regardless of whether his case is ultimately dismissed. See

(b)(1) & (2); 9 Taylor v. Delatoore,

(9th Cir. 2002). 10 Plaintiff has not prepaid the $402 in filing and administrative fees required to 11 commence this action, nor has he submitted a properly supported Motion to Proceed IFP 12 pursuant to

(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 13 § 1914(a); Andrews,

. 14 II. Conclusion and Order 15 For the reasons set forth above, the Court hereby: 16 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 17 $402 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 18

(a) and 1915(a); and 19 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 20 to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 21 file a Motion to Proceed IFP which includes a certified copy of his trust account statement 22 for the 6-month period preceding the filing of his Complaint. See

(a)(2); 23 S.D. Cal. CivLR 3.2(b). 24

25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 26 See

(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 27 proceed IFP. Id. 1 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 2 with this Court’s approved form “Motion and Declaration in Support of Motion to Proceed 3 In Forma Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or complete 4 and submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 5 dismissed without prejudice based on Plaintiff’s failure to satisfy

(a)’s fee 6 requirements and without further Order of the Court. 7 IT IS SO ORDERED. 8 Dated: August 31, 2021 9 Cynthia Bashant United States District Judge 10

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