Bonilla v. Don Clay
- Proceeding
- district
- Area
- civil
- Panel
- Larry Alan Burns (author)
Analysis
The court reviewed a civil complaint filed by a pro se prisoner who had not paid the required filing fee or filed a motion to proceed in forma pauperis. The court dismissed the action without prejudice and granted the plaintiff 30 days to pay the fee or file a proper IFP motion.
| What the court decided | The model |
|---|---|
Dismissal of the civil action without prejudice for failure to pay the filing fee or move to proceed in forma pauperis.“DISMISSES this action sua sponte without prejudice for failure to pay the $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 28 U.S.C. Section 1914(a) and Section 1915(a)” | agree with court The court correctly applied 28 U.S.C. § 1914(a) and § 1915(a). A civil action cannot proceed unless the filing fee is paid or the plaintiff is granted leave to proceed in forma pauperis. The order recites that the plaintiff did neither. Dismissing without prejudice and providing a 30-day window to cure the defect is the standard procedural remedy in the Ninth Circuit for this deficiency. |
Granting plaintiff 30 days to pay the filing fee or file a Motion to Proceed IFP.“GRANTS Plaintiff thirty (30) days leave from the date this Order is filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete and file a Motion to Proceed IFP which includes a certified copy of his trust account statement for the 6-month period preceding the filing of his Complaint.” | agree with court Providing a period to cure a procedural deficiency before final dismissal is consistent with local rules and general practice to ensure due process for pro se litigants, particularly prisoners who may not have immediate access to funds or legal counsel. |
The order itself: sound — The order is procedurally sound. It correctly identifies the statutory requirements for filing a civil action, notes the plaintiff's failure to meet them, and provides a standard cure period. The citations to Ninth Circuit precedent are accurate and directly support the court's action. There are no gaps in reasoning for this specific procedural ruling.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN WAYNE BONILLA, Case No.: 3:20-cv-00201-LAB-AGS CDCR #J-48500, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY 14 FILING FEE REQUIRED 15 BY 28 U.S.C. § 1914(a) AND/OR CLARENCE DON CLAY; JEFFREY W. FAILING TO MOVE TO PROCEED 16 HORNER; KELLY S. SIMMONS; IN FORMA PAUPERIS YVONNE GONZALEZ-ROGERS; 17 PURSUANT TO JEFFREY S. WHITE; VINCE G. 28 U.S.C. § 1915(a) 18 CHHABRIA; RICHARD SEEBORG;
DOLLY M. GEE; JEAN P. 19 ROSENBERG; EDMOND F.
20 BRENNAN; ANTHONY J. BATTAGLIA; HOWARD R. LLOYD; 21 BETH LABSON FREEMAN; TANI 22 GORRE CANTIL-SAKAUYE, 23 Defendants. 24 25 Plaintiff Steven Wayne Bonilla, proceeding pro se and currently incarcerated at San 26 Quentin State Prison has filed a civil action. (See ECF No. 1, Compl.) 27 I. Failure to Pay Filing Fee or Request IFP Status 28 All parties instituting any civil action, suit or proceeding in a district court of the 1 United States, except an application for writ of habeas corpus, must pay a filing fee of 2 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 3 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 4 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 5 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a 6 prisoner, and even if he is granted leave to commence his suit IFP, he remains obligated 7 to pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 8 (9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 9 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 10 Plaintiff has not prepaid the $400 in filing and administrative fees required to 11 commence this civil action, nor has he submitted a properly supported Motion to Proceed 12 IFP pursuant to 28 U.S.C. Section 1915(a). Therefore, his case cannot yet proceed. See 13 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 14 II. Conclusion and Order 15 For the reasons set forth above, the Court hereby: 16 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 17 $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 18 28 U.S.C. Section 1914(a) and Section 1915(a); and 19 (2) GRANTS Plaintiff thirty (30) days leave from the date this Order is filed 20 to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete 21 and file a Motion to Proceed IFP which includes a certified copy of his trust account 22 statement for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. 23 § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 28 1 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 2 || with this Court’s approved form “Motion and Declaration in Support of Motion to 3 || Proceed In Forma Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or 4 ||complete and submit the enclosed Motion to Proceed IFP within 30 days, this action will 5 ||remain dismissed without prejudice based on Plaintiffs failure to satisfy the fee 6 requirements of 28 U.S.C. Section 1914(a) and without further Order of the Court. 7 IT IS SO ORDERED. 8 9 Dated: February 24, 2020 / it 4 ‘Z, WY 10 Hon. Larfy Alan Burns 11 Chief United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
Cites, in this corpus
- Lonnie Williams, Jr. v. Daniel Paramo 13-56004 · 2015-01-07