(PC) Anderson v. Rose, No. 2:2018cv01216 - Document 54 (E.D. Cal. 2019)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/15/2019 DENYING 52 Request and RECOMMENDING this action be dismissed without prejudice and the Clerk be directed to terminate all pending motions and close this case. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TUANJA EDWARD ANDERSON, 12 No. 2:18-cv-1216 JAM KJN P Plaintiff, 13 v. 14 C. ROSE, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner, proceeding without counsel. On October 4, 2019, the district 17 18 court revoked plaintiff’s in forma pauperis status and ordered plaintiff to pay the $400.00 filing 19 fee within 21 days. Such deadline has now passed, and plaintiff has not paid the filing fee. 20 Therefore, this action should be dismissed based on plaintiff’s failure to comply with the court’s 21 order. Fed. R. Civ. P. 41(b). On October 17, 2019, plaintiff filed a request that he not be charged for the court’s filing 22 23 fee in light of the district court’s order revoking plaintiff’s in forma pauperis status, and seeks a 24 refund of the $5.00 paid to date. 25 All parties instituting any civil action, suit or proceeding in a district court of the United 26 States, except an application for writ of habeas corpus, are required to pay a filing fee of $400.1 27 28 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to prepay the entire 2 fee only if he is granted leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). See 3 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 4 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed in forma pauperis remains 5 obligated to pay the entire fee in “increments” or “installments.” Bruce v. Samuels, 136 S. Ct. 6 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015). Such obligation 7 remains, regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 8 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 10 Because payment of the court’s filing fee is required, the court does not have authority to waive or refund the filing fee in this case. Thus, plaintiff’s request (ECF No. 52) is denied. 11 Accordingly, IT IS HEREBY ORDERED that plaintiff’s request (ECF No. 52) is denied. 12 Further, IT IS RECOMMENDED that: 13 1. This action be dismissed without prejudice; and 14 2. The Clerk of the Court be directed to terminate all pending motions and close this case. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 20 objections shall be filed and served within fourteen days after service of the objections. The 21 parties are advised that failure to file objections within the specified time may waive the right to 22 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 Dated: November 15, 2019 24 25 26 /ande1216.fpf 27 28 Schedule, § 14 (eff. June 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed in forma pauperis. Id. 2

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