Jones v. Musk

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA WAYNE E. JONES, Case No.: 3:23-CV-1799-JLS (AHG) CDCR #BU-7712, 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 ELON MUSK, TESLA CO., SPACE X FAILING TO MOVE TO PROCEED INC., et al., IN FORMA PAUPERIS 17 Defendants. PURSUANT TO 28 U.S.C. § 1915(a) 19 (ECF No. 1) 21 Plaintiff Wayne E. Jones, proceeding pro se and currently incarcerated at Richard J.

22 Donovan Correctional Facility (“RJD”) has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. ECF No. 1.

24 FAILURE TO PAY FILING FEE OR REQUEST IFP STATUS 25 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 failure to pay the entire fee only if the plaintiff 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, and even if he is granted leave to proceed 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).

9 Jones has not paid the $402 in filing and administrative fees required to commence a civil action in federal court, and has not requested leave 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.

13 CONCLUSION 14 Accordingly, the Court: (1) DISMISSES this civil action without prejudice based on Plaintiff’s failure to pay the $402 civil filing and administrative fee or submit a Motion to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed to re-open the case by: (a) paying 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 of his trust account statement for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2).

21 In light of Jones’s incarceration, the Court further DIRECTS the Clerk of the Court to provide him with its approved form “Motion and Declaration in Support of Motion to Proceed In Forma Pauperis.” If Jones fails to either prepay the $402 civil filing fee or 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 ||complete and file the enclosed Motion to Proceed IFP with the Clerk within 45 days, || however, his case will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a) 3 without further Order of the Court.

4 IT IS SO ORDERED.

5 Dated: September 29, 2023 . tt f te 6 on. Janis L. Sammartino 7 United States District Judge