3:26-cv-00226•Lister v. Davis et al
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-1- 3:26-cv-00226-JAH-MSB 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 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 /// Case 3:26-cv-00226-JAH-MSB Document 4 Filed 02/26/26 PageID.<pageID> Page 1 of 3
-2- 3:26-cv-00226-JAH-MSB 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 $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. Case 3:26-cv-00226-JAH-MSB Document 4 Filed 02/26/26 PageID.<pageID> Page 2 of 3
-3- 3:26-cv-00226-JAH-MSB 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 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 Case 3:26-cv-00226-JAH-MSB Document 4 Filed 02/26/26 PageID.<pageID> Page 3 of 3
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