Lister v. Davis et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ABER HAYNES LISTER,
Booking No. 25712878,
Plaintiff,
vs.
CINDY DAVIS, Judge, et al.,
Defendants.
Case No.: 3:26-cv-00226-JAH-MSB
ORDER DISMISSING CIVIL
ACTION WITHOUT PREJUDICE
FOR FAILING TO PAY
FILING FEE AND/OR FAILING
TO MOVE TO PROCEED
IN FORMA PAUPERIS
Plaintiff Aber Haynes Lister, while detained at San Diego Central Jail, and
proceeding without counsel, filed this civil rights action pursuant to 42 U.S.C. § 1983.
(See Compl., ECF No. 1.) Lister seeks $12 million in damages based on claims that he
has been denied a fair trial and has been subject to several vindictive San Diego Superior
Court criminal prosecutions. (Id. at 2–5, 7.) For the reasons explained, the Court
dismisses the action sua sponte without prejudice.
I. Failure to Pay Filing Fee or to File In Forma Pauperis (“IFP”) Motion
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
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$405.1 An action may proceed despite a plaintiff’s failure to pay the entire fee only if he
seeks and the court grants him leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See
Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Hymas v. U.S. Dep’t of the
Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP application is denied
altogether, Plaintiff’s case [cannot] proceed unless and until the fee[s] [a]re paid.”).
“While the previous version of the IFP statute granted courts the authority to waive
fees for any person ‘unable to pay[,]’ … the PLRA [Prison Litigation Reform Act]
amended the IFP statute to include a carve-out for prisoners: under the current version of
the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the
prisoner shall be required to pay the full amount of a filing fee.’” Hymas, 73 F.4th at 767
(quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured timeline for
collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)-(2)).
Therefore, to proceed IFP, prisoners like Plaintiff must “submit[] an affidavit that
includes a statement of all assets [they] possess[,]” as well as “a “certified copy of the[ir]
trust fund account statement (or institutional equivalent) for … the 6-month period
immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2). Using
this financial information, the court “shall assess and when funds exist, collect, … an
initial partial filing fee,” which is “calculated based on ‘the average monthly deposits to
the prisoner’s account’ or ‘the average monthly balance in the prisoner’s account’ over a
6-month term; the remainder of the fee is to be paid in ‘monthly payments of 20 percent
of the preceding month’s income credited to the prisoner’s account.” Hymas, 73 F.4th at
767 (quoting 28 U.S.C. § 1915(b)(1)–(2)); Williams v. Paramo, 775 F.3d 1182, 1185 (9th
Cir. 2015).
1 Civil litigants must pay an administrative fee of $55 in addition to the $350 statutory
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
not apply to persons granted leave to proceed IFP. Id.
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Plaintiff did not pay the $405 filing pursuant to 28 U.S.C. § 1914(a) at the time he
filed his Complaint, nor has he filed a properly supported motion to proceed IFP pursuant
to 28 U.S.C. § 1915(a). Until Plaintiff either pays the filing fee in full or complies with
§ 1915(a)’s requirements, his case cannot proceed. See Andrews, 493 F.3d 1047, 1051;
Hymas, 73 F.4th at 765.
II. Conclusion
Accordingly, the Court DISMISSES this civil action sua sponte without prejudice
based on Plaintiff’s failure to pay the $405 civil filing and administrative fee or to submit
a motion to proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a).
To successfully re-open the case, Plaintiff must either: (a) pay the entire $405 civil
filing and administrative fee; or (b) complete and file a motion to proceed IFP which
includes a certified copy of trust account statement for the 6-month period preceding the
filing of his complaint no later than April 10, 2026. See 28 U.S.C. § 1915(a)(2); S.D.
Cal. Civ. L.R. 3.2(b). If Plaintiff fails to do either by April 10, 2026, this action will
remain dismissed without prejudice based on his failure to pay the filing fees required by
28 U.S.C. § 1914(a).
IT IS SO ORDERED.
Dated: February 26, 2026
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