(PC) Traver v. Driskill

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JESSE TRAVER, Case No.: 25-cv-1476-RSH-AHG CDCR #J-77091, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY FILING FEE 14 REQUIRED BY 28 U.S.C. § 1914(a) 15 AND/OR FAILING TO MOVE TO BRENT R. DRISKILL, Medical Doctor, PROCEED IN FORMA PAUPERIS 16 Defendant. PURSUANT TO 28 U.S.C. § 1915(a) 17 18 19 On June 3, 2025, Plaintiff Jesse Traver, proceeding pro se and incarcerated at 20 California Correctional Institution in Tehachapi, California, filed a civil rights complaint 21 pursuant to 42 U.S.C. § 1983 in the Eastern District of California. See ECF No. 1. Because 22 Plaintiff claims a doctor at Alvarado Hospital in San Diego violated his Eighth Amendment 23 right to adequate medical care during an outpatient surgery performed in November 2022, 24 while he was a prisoner at Richard J. Donovan Correctional Facility, id. at 1‒3, United 25 States Magistrate Judge Sheila K. Oberto transferred the action to this Court for lack of 26 proper venue and in the interests of justice pursuant to 28 U.S.C. § 1406(a). 27 See ECF No. 2. 28 /// 1 I. Failure to Pay Filing Fee or to File In Forma Pauperis (“IFP”) Motion 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $405.1 An action may proceed despite a plaintiff’s failure to pay the entire fee only if he 5 seeks and the court grants him leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 6 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Hymas v. U.S. Dep’t of the 7 Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP application is denied 8 altogether, Plaintiff’s case [cannot] proceed unless and until the fee[s] [a]re paid.”). 9 “While the previous version of the IFP statute granted courts the authority to waive 10 fees for any person ‘unable to pay[,]’ … the PLRA [Prison Litigation Reform Act] 11 amended the IFP statute to include a carve-out for prisoners: under the current version of 12 the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the 13 prisoner shall be required to pay the full amount of a filing fee.’” Hymas, 73 F.4th at 767 14 (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured timeline for 15 collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)-(2)). 16 Therefore, to proceed IFP, prisoners must “submit[] an affidavit that includes a 17 statement of all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund 18 account statement (or institutional equivalent) for … the 6-month period immediately 19 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2). Using this financial 20 information, the court “shall assess and when funds exist, collect, … an initial partial filing 21 fee,” which is “calculated based on ‘the average monthly deposits to the prisoner’s account’ 22 or ‘the average monthly balance in the prisoner’s account’ over a 6-month term; the 23 remainder of the fee is to be paid in ‘monthly payments of 20 percent of the preceding 24 25 26 1 Civil litigants must pay an administrative fee of $55 in addition to the $350 statutory 27 filing fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does 28 1 month’s income credited to the prisoner’s account.” Hymas, 73 F.4th at 767 (quoting 28 2 U.S.C. § 1915(b)(1)–(2)); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015). 3 Here, Plaintiff did not pay the $405 filing pursuant to 28 U.S.C. § 1914(a) at the time 4 he filed his complaint in the Eastern District, nor has he filed a properly supported Motion 5 to Proceed IFP pursuant to 28 U.S.C. § 1915(a). Until Plaintiff either pays the filing fee in 6 full or complies with § 1915(a)’s requirements, his case cannot proceed. See Andrews, 493 7 F.3d 1047, 1051; Hymas, 73 F.4th at 765. 8 II. Conclusion 9 Accordingly, the Court: 10 1) DISMISSES this civil action sua sponte without prejudice based on 11 Plaintiff’s failure to pay the $405 civil filing and administrative fee or to submit a Motion 12 to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 13 2) GRANTS Plaintiff forty-five (45) days from the date of this Order to re-open 14 the case by: (a) paying the entire $405 filing fee in full; or (b) completing and filing a 15 Motion to Proceed IFP which includes a certified copy of his prison trust account statement 16 for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 17 S.D. Cal. CivLR3.2.b;2 and 18 3) DIRECTS the Clerk of the Court to provide Plaintiff with this Court’s 19 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 20 21 2 Plaintiff is cautioned that if he chooses to re-open this case by either paying the full 22 $405 civil filing fee, or submitting a properly supported Motion to Proceed IFP, his 23 Complaint will be subject to a preliminary screening pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B) regardless of whether he pays the fee in full, or is granted 24 leave to proceed IFP and is obligated to pay it in installments. See Lopez v. Smith, 203 F.3d 25 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 IFP complaint that is frivolous, malicious, 26 fails to state a claim, or seeks damages from defendants who are immune); see also Rhodes 27 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 28 | || Pauperis.” If Plaintiff fails to either pay the $405 civil filing fee in full or complete and 2 ||submit the enclosed Motion to Proceed IFP within 45 days, his case will remain dismissed 3 || without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirements. 4 IT IS SO ORDERED. 5 || Dated: June 20, 2025 ‘ 6 lL bus ae □ Lowe 7 Hon. Robert S. Huie United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4