Hurst v. Richardson

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA PATRICK DORIAN HURST, Case No.: 3:22-cv-01467-GPC-MDD Booking #22722552, ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY FILING FEE REQUIRED 15 BY 28 U.S.C. § 1914(a) AND/OR ZACHARY RICHARDSON, San Diego FAILING TO MOVE TO PROCEED Police Officer #1065, IN FORMA PAUPERIS 17 Defendant. PURSUANT TO 28 U.S.C. § 1915(a) 20 Plaintiff Patrick Dorian Hurst, proceeding pro se and while detained at the San Diego County Sheriff’s Department Las Colinas Detention and Reentry Facility, in Santee, California, filed this civil rights action pursuant to 42 U.S.C. § 1983, on September 26, 2022. See Compl., ECF No. 1.

24 Plaintiff claims a San Diego Police Officer violated his constitutional rights during an April 2022 traffic stop that resulted in his arrest. Id. at 2‒5. He seeks injunctive relief preventing further harassment, $200 million in general and punitive damages, and demands a jury trial. Id. at 7.

28 / / / I. Failure to Pay Filing Fee or Request IFP Status 2 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).1 An 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. Section 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, and 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).

12 Plaintiff has not prepaid the $402 in filing and administrative fees required to commence this civil action; nor has he submitted a properly supported Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051.

16 II. Conclusion and Order 17 Accordingly, the Court: 18 (1) DISMISSES this civil action sua sponte without prejudice based on Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 21 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed to re-open his case by: (a) prepaying the entire $402 civil filing and administrative fee in full; or (b) completing and filing a Motion to Proceed IFP which includes a certified copy 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 |}of his San Diego County Sheriff's Department trust account statement report for the 6- ||month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. || Civ. L.R. 3.2(b).

4 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s ||approved form “Motion and Declaration in Support of Motion to Proceed Jn Forma || Pauperis.” But if Plaintiff fails to either prepay the $402 civil filing fee or 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 requirements and without further Order of the Court.’

10 IT IS SO ORDERED.

11 Dated: October 4, 2022 72 / C4 12 Hon. Gonzalo P. Curiel 13 United States District Judge ||? Plaintiff is further cautioned that if he chooses to re-open the case by either prepaying the full $402 civil filing fee, or by submitting a properly supported Motion to Proceed IFP, his Complaint will be subject to an initial review and may be dismissed sua sponte pursuant to 23 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full $402 filing fee at once, or is granted IFP status and is obligated to pay the full filing fee in installments. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 25 (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); see also Rhodes v. Robinson, 621 ||F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.’’).