Musgrove v. Pierce
- Proceeding
- district
- Area
- civil
- Panel
- John A. Houston (author)
Analysis
The court reviewed a pro se civil action filed without the required filing fee or a motion to proceed in forma pauperis. The court dismissed the action without prejudice, granted the plaintiff 30 days to pay the fee or file an IFP motion, and dismissed a pending motion to electronically file as moot.
| What the court decided | The model |
|---|---|
Dismissal of civil action without prejudice for failure to pay filing fee or move for IFP status“DISMISSES this action sua sponte without prejudice for failing to pay the $400 filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 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 consistent with Ninth Circuit precedent (e.g., Andrews v. Cervantes) and local rules. The decision follows from the law and the recited record. |
Grant of 30 days to pay filing fee or file IFP motion“GRANTS Plaintiff thirty (30) days leave from the date this Order is filed to: (a) prepay the entire $400 civil filing fee in full; or (b) complete and file a Motion to Proceed IFP.” | agree with court Providing a period to cure the deficiency before final dismissal is a common and equitable practice in the Ninth Circuit for pro se litigants, ensuring due process while enforcing statutory requirements. The court cited the relevant statute and local rule. |
Dismissal of motion to electronically file as moot“DISMISSES as moot Plaintiffs motion for leave to electronically file. See Doc. No. 2.” | agree with court Because the underlying action was dismissed, any pending motions related to the conduct of that action (such as electronic filing) become moot. This is a logical procedural consequence. |
The order itself: sound — The order is procedurally sound. It correctly identifies the statutory requirements for commencing a civil action, applies them to the facts (no fee paid, no IFP motion filed), and cites appropriate Ninth Circuit precedent. The remedy (dismissal without prejudice with a cure period) is standard and equitable. There are no significant gaps or errors in the reasoning.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IRVIN MUSGROVE, Case No.: 20cv655-JAH (LL)
12 Plaintiff, ORDER: 13 v. (1) DISMISSING CIVIL ACTION 14 MARGERY PIERCE; KEYSA WITHOUT PREJUDICE FOR MACHADO; OCEANSIDE HOUSING 15 FAILING TO PAY FILING FEE AUTHORITY, REQUIRED BY 28 U.S.C. § 1914(a) 16 Defendants. AND/OR FAILING TO MOVE TO 17 PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a); 18 19 (2) DISMISSING AS MOOT PLAINTIFF’S MOTION TO 20 ELECTRONICALLY FILE (Doc. No. 21 2) 22 Irvin Musgrove (“Plaintiff”), proceeding pro se, has filed a civil action. See Doc. 23 No. 1. 24 I. Failure to Pay Filing Fee or Request IFP Status 25 All parties instituting any civil action, suit or proceeding in any district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 28 1 || $400'. See 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay this 2 || filing fee only if the party is granted leave to proceed in forma pauperis (“IFP’’) pursuant 3 28 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 Plaintiff has not prepaid the $400 filing fee required to commence a civil action, nor 6 he submitted a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). Therefore, the 7 || action cannot yet proceed. Id. 8 Conclusion and Order 9 For the reasons set forth above, the Court hereby: 10 (1) DISMISSES this action sua sponte without prejudice for failing to pay the $400 11 filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 12 1915(a); 13 (2) GRANTS Plaintiff thirty (30) days leave from the date this Order is filed 14 to: (a) prepay the entire $400 civil filing fee in full; or (b) complete and file a Motion 15 to Proceed IFP. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIV. LR 3.2(b). 16 (3) DISMISSES as moot Plaintiffs motion for leave to electronically file. See Doc. 17 No. 2. 18 IT IS SO ORDERED. 19 20 || DATED: April 29, 2020 21 VU 22 JOWN A. HOUSTON” 73 United States District Judge 24 20 26 ||! In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 27 || (eff. Dec. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to || proceed IFP. Id.