Wilson v. Institution Facility Dental Department et al

1
3:25-cv-2839-JES-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
GERALD WILSON,
CDCR # B93800,
Plaintiff,
vs.
INSTITUTION FACILITY DENTAL
DEP’T, JOHN DOE #1, JOHN DOE #2,
DENTAL DEP’T,
Defendants.
Case No.: 3:25-cv-2839-JES-BLM
ORDER DISMISSING CIVIL
ACTION FOR FAILURE TO PAY
FILING FEES REQUIRED BY
28 U.S.C. § 1914(a) AND/OR FOR
FAILURE TO PROPERLY MOVE
TO PROCEED IN FORMA
PAUPERIS PURSUANT TO
28 U.S.C. § 1915(a)
Plaintiff Gerald Wilson, currently incarcerated at R.J. Donovan Correctional Facility
(“RJD”) and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C.
§ 1983. See ECF No. 1. Plaintiff alleges Defendants violated his Eighth Amendment rights
when they failed to provide him with adequate dental care. See id. As discussed below, the
action must be dismissed without prejudice.
I. 	FAILURE TO PAY FILING FEE OR SUBMIT MOTION TO PROCEED IFP
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
$405. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
Case 3:25-cv-02839-JES-JAC Doc 3 Filed 03/16/26 PageID.<pageID> Pg 1/4

2
3:25-cv-2839-JES-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
prepay the entire fee only if he 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) (“Cervantes”); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However,
a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in
“increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v.
Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is
ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844,
847 (9th Cir. 2002).
Section 1915(a)(2) requires all persons seeking to proceed without full prepayment
of fees to submit an affidavit that includes a statement of all assets possessed and which
demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir.
2015) (emphasis added). In support of this affidavit, prisoners like Plaintiff must also
submit a “certified copy of the 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)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). It is from the certified
trust account statement that the Court assesses an initial payment of 20% of (a) the average
monthly deposits in the account for the past six months, or (b) the average monthly balance
in the account for the past six months, whichever is greater, unless he has no assets. 	See
28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the
prisoner then collects subsequent payments, assessed at 20% of the preceding month’s
income, in any month in which his account exceeds $10, and forwards those payments to
the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at
85‒86.
Plaintiff did not pay the filing fee required to commence a civil action when he filed
his Complaint, nor has he filed a Motion to Proceed IFP, which includes both the affidavit
required by 28 U.S.C. § 1915(a)(1) and the certified copies of his trust funds account
statements required by 28 U.S.C. § 1915(a)(2). While RJD has provided a copy of
Plaintiff’s trust account statement, see ECF No. 2, this accounting, unless accompanied by
Case 3:25-cv-02839-JES-JAC Doc 3 Filed 03/16/26 PageID.<pageID> Pg 2/4

3
3:25-cv-2839-JES-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a motion and affidavit submitted by Plaintiff, is insufficient. “The in forma pauperis statute
authorizes courts to allow ‘[1] the commencement, prosecution or defense of any suit,
action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and
costs or security therefor, by a person who [2] makes affidavit that he is [3] unable to pay
such costs or give security therefor.’” Rowland v. California Men’s Colony, Unit II Men’s
Advisory Council, 506 U.S. 194, 214 (1993) (quoting 28 U.S.C. § 1915(a)). “Section
1915(a) thus contemplates that the []person[] who is entitled to the benefits of the provision
will have three characteristics: He will have the capacity to sue or be sued, to make an
affidavit, and to be unable to pay court costs.” Id. “Such affidavit shall [also] state the
nature of the action, . . . 	and affiant’s belief that [he] is entitled to redress.” 28 U.S.C.
§ 1915(a)(1). “When a claim of poverty is made under section 1915 ‘it is proper and indeed
essential for the supporting affidavits to state the facts as to affiant’s poverty with some
particularity, definiteness and certainty.’” United States v. McQuade, 647 F.2d 938, 940
(9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)).
Therefore, unless Plaintiff either pays the filing fee “upfront,” Bruce, 577 U.S. at 86,
or files a properly supported Motion to Proceed IFP that includes an affidavit that meets
the requirements set out in 28 U.S.C. § 1915(a)(1), his case cannot proceed. See 28 U.S.C.
§ 1914(a); Cervantes, 493 F.3d at 1051.
II. 	CONCLUSION AND ORDER
Accordingly, the Court:
(1) 	DISMISSES this action without prejudice based on Plaintiff’s failure to pay
the $405 civil filing and administrative fee required by 28 U.S.C. § 1914(a), and his failure
to properly move to proceed IFP pursuant to 28 U.S.C. § 1915(a).
(2) 	GRANTS Plaintiff forty-five (45) days leave from the date of this Order to
re-open his case by: (a) prepaying the entire $405 civil filing and administrative fee
required by 28 U.S.C. § 1914(a) in full; or (b) completing and filing a Motion and
Declaration 	in 	Support 	of 	Motion 	to 	Proceed 	IFP 	that 	complies 	with 	28 	U.S.C.
§ 1915(a)(1), (2) and S.D. Cal. CivLR 3.2.b.
Case 3:25-cv-02839-JES-JAC Doc 3 Filed 03/16/26 PageID.<pageID> Pg 3/4

4
3:25-cv-2839-JES-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(3) 	DIRECTS the Clerk of the Court to provide Plaintiff with a Court-approved
form “Motion and Declaration in Support of Motion to Proceed IFP” for his use and
convenience. Should Plaintiff neither pay the $405 filing fee in full nor sufficiently
complete and file the attached Motion and Declaration to Proceed IFP within 45 days, this
civil action will remained dismissed without prejudice pursuant to 28 U.S.C. § 1914(a),
and without further Order of the Court.1
IT IS SO ORDERED.
Dated: March 16, 2026
1 Plaintiff is cautioned that if he chooses to re-open the case by either prepaying the full $405 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 28 U.S.C. § 1915A(b)
and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full 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) (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.”).
Case 3:25-cv-02839-JES-JAC Doc 3 Filed 03/16/26 PageID.<pageID> Pg 4/4