Perez v. McCauley
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
The court considered a civil action filed by pro se plaintiff Carlos Perez against Sheriff Deputy Kevin McCauley, which remained pending without the payment of the mandatory filing fee or a grant of in forma pauperis status. The court ordered the action dismissed without prejudice for failure to pay the filing fee.
| What the court decided | The model |
|---|---|
Action dismissed without prejudice for failure to pay filing fee“Consequently, the Court dismisses this Action without prejudice for failure to pay the mandatory fee.” | agree with court The dismissal is procedurally correct. Under 28 U.S.C. § 1914(a), a civil action cannot proceed unless the filing fee is paid or the plaintiff is granted leave to proceed in forma pauperis (IFP) under 28 U.S.C. § 1915. The order recites that the plaintiff filed the complaint in April 2019, has not paid the fee, and has not obtained IFP status (which requires an affidavit under Civil Local Rule 3.2.a). Since the mandatory fee was not paid and no IFP status was granted, the court lacked jurisdiction to proceed on the merits, making dismissal without prejudice the appropriate remedy. |
The order itself: sound — The order correctly identifies the statutory requirement for filing fees and the exception for IFP status. It cites the relevant statute and Ninth Circuit precedent to support the proposition that the action cannot proceed without payment or IFP status. The factual finding that the fee was not paid and IFP was not granted supports the dismissal. The reasoning is concise and legally sufficient for a procedural dismissal.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Carlos Perez, Case No.: 19-cv-00670-GPC-LL 12 Plaintiff, ORDER DISMISSING ACTION 13 v. WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE. 14 Kevin McCauley, in his official capacity as a Sheriff Deputy and his individual 15 capacity, 16 Defendant. 17 18 This Order arises from Plaintiff’s failure to pay the filing fee for his Complaint. 19 (ECF No. 1.) All parties instituting any civil action, suit, or proceeding in a district court 20 of the United States, except an application for writ of habeas corpus, must pay a filing fee 21 of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 22 prepay the entire fee only if the plaintiff is granted leave to proceed IFP under 28 U.S.C. 23 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). All actions 24 sought to be filed IFP under § 1915 must be accompanied by an affidavit, signed by the 25 applicant under penalty of perjury, that includes a statement of all assets which shows 26 inability to pay initial fees or give security. Civil Local Rule 3.2.a. 27 / / / 1 Here, Plaintiff filed a complaint on April 10, 2019. (ECF No. 1.) More than one 2 || year has elapsed since the filing of the complaint, and Plaintiff has yet to pay the filing 3 || fee. Consequently, the Court dismisses this Action without prejudice for failure to pay the 4 || mandatory fee. 5 IT IS SO ORDERED. 2 apho Ck ) 6 Dated: April 30, 2020 Hon. Gonzalo P. Curiel 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28