Turner v. San Diego Trolley
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court considered a pro se civil complaint filed under 28 U.S.C. § 1983 that was not accompanied by the required filing fee or a proper motion to proceed in forma pauperis. The court dismissed the action without prejudice and ordered the plaintiff to pay the fee or file a compliant IFP motion within 21 days.
| What the court decided | The model |
|---|---|
Dismissal of the civil action without prejudice for failure to pay the filing fee.“Consequently, Mr. Turner’s Complaint (ECF No. 1) is DISMISSED WITHOUT PREJUDICE for failure to pay the requisite filing fee.” | agree with court The dismissal is procedurally correct. Under 28 U.S.C. § 1914(a), a civil action in federal court requires a filing fee. The plaintiff failed to pay the fee and did not file a valid motion to proceed in forma pauperis (IFP) as required by 28 U.S.C. § 1915(a). The court correctly noted that the plaintiff's informal request for a 'fee waiver' in the complaint was improper under Rule 7(b)(1) and failed to meet the statutory requirements for an IFP motion (specifically the lack of an affidavit of assets). Dismissing without prejudice allows the plaintiff to cure the defect by paying the fee or filing a proper IFP motion. |
The order itself: sound — The order is procedurally sound. It correctly identifies the statutory requirement for a filing fee, notes the plaintiff's failure to pay or file a proper IFP motion, and cites the correct procedural rule (Rule 7(b)(1)) for why the request in the complaint was insufficient. The dismissal without prejudice is the standard remedy for this procedural defect, allowing the plaintiff to cure the issue.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BRYAN TURNER, JR., Case No.: 18-CV-2879 JLS (AGS)
12 Plaintiff, ORDER DISMISSING CIVIL 13 v. ACTION FOR FAILURE TO PAY FILING FEES REQUIRED BY 14 SAN DIEGO TROLLEY (M.T.S.); 28 U.S.C. § 1914(a) COUNTY OF SAN DIEGO; CITY OF 15 SAN DIEGO; CITY OF EL CAJON; and (ECF No. 1) 16 711, 17 Defendants. 18 19 On December 21, 2018, Plaintiff David Bryan Turner, Jr., proceeding pro se, filed 20 a Complaint under 28 U.S.C. § 1983, alleging causes of action for excessive force in 21 violation of his Fourth and Fourteenth Amendment rights, violations of the “Fair Cr[e]dit 22 Act,” and “enforcing civil rights violations” arising out of the wrongful ticketing and arrest 23 of the homeless on the San Diego trolley. See generally ECF No. 1. He seeks damages in 24 the amount of $28,000,000 for his excessive force claim, $21,000,000 for his Fair Credit 25 claim, and $21,000 for his civil rights claim. See generally id. 26 All parties instituting any civil action, suit, or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 / / / 1 ||$400.! See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 || prepay the entire fee only if he is granted leave to proceed in forma pauperis pursuant to 3 1128 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 4 || Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 5 In the nearly eight months since he filed his Complaint, Mr. Turner has not paid the 6 required $400 filing fee or filed a motion to proceed in forma pauperis.” Consequently, 7 ||Mr. Turner’s Complaint (ECF No. 1) is DISMISSED WITHOUT PREJUDICE for 8 || failure to pay the requisite filing fee. No later than twenty-one (21) calendar days from the 9 || date this Order is electronically docketed, Mr. Turner must either pay the filing fee or move 10 || to proceed in forma pauperis. Should Mr. Turner fail to pay the filing fee or move to 11 || proceed in forma pauperis, this action will be dismissed without prejudice. 12 IT IS SO ORDERED. 13 14 Dated: August 21, 2019 15 on, Janis L. Sammartino United States District Judge 16 17 18 19 20 21 22 23 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 4 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. /d. 25 > In his Complaint, see ECF No. 1 at 4, Mr. Turner requests a “fee waiver” on the ground that he “has no 26 || money [and] he is just getting out of the Central Jail and getting over a[n] injur[Jed hand, face and head > ... caused by the” Defendants. Not only is this request improper under Federal Rule of Civil Procedure 7 7(b)(1), which requires that “[a] request for a court order must be made by motion,” but it also fails to 28 meet the necessary requirements of 28 U.S.C. § 1915(a), which requires the movant to “submit[] an affidavit that includes a statement of all assets.”