Devon v. Diaz
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court reviewed a pro se civil rights complaint filed by a 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 45 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. §§ 1914(a) and 1915(a)” | agree with court The dismissal is procedurally correct because 28 U.S.C. § 1914(a) requires the payment of a filing fee to commence a civil action, and 28 U.S.C. § 1915(a) provides the exclusive mechanism for a plaintiff to proceed without prepaying that fee. Since the plaintiff did neither, the court lacked jurisdiction to proceed on the merits and was required to dismiss the action. The dismissal is without prejudice, allowing the plaintiff to cure the defect. |
Granting of 45 days leave to pay the filing fee or file a Motion to Proceed IFP.“GRANTS Plaintiff forty-five (45) 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” | agree with court Granting a specific period to cure a procedural defect in a pro se prisoner case is consistent with the court's inherent authority to manage its docket and the equitable considerations often applied to pro se litigants. The requirement to include a certified trust account statement aligns with 28 U.S.C. § 1915(a)(2) and local rules. |
The order itself: sound — The order correctly identifies the statutory requirements for commencing a civil action and the specific procedural steps a prisoner must take to proceed without prepaying fees. It cites the correct statutes and Ninth Circuit precedent to support the conclusion that the case cannot proceed without either payment or a valid IFP motion. The remedy of dismissal without prejudice and a deadline to cure is standard and appropriate.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:20-cv-0842-CAB-JLB ALAN DEVON, 12 CDCR #E-43780, ORDER DISMISSING CIVIL 13 ACTION WITHOUT PREJUDICE Plaintiff, FOR FAILING TO PAY 14 v. FILING FEE REQUIRED 15 BY 28 U.S.C. § 1914(a) AND/OR RALPH M. DIAZ; DANIEL PARAMO; FAILING TO MOVE TO PROCEED 16 PATRICK COVELLO, IN FORMA PAUPERIS 17 Defendants. PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 ALAN DEVON, (“Plaintiff”), currently incarcerated at Kern Valley State Prison 21 located in Delano, California, and proceeding pro se, has filed a civil action (“Compl.”) 22 pursuant to 42 U.S.C. § 1983 (ECF No. 1). 23 I. Failure to Pay Filing Fee or Request IFP Status 24 All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 27 1 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a prisoner, and 5 even if he is granted leave to commence his suit IFP, he remains obligated to pay the 6 entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 7 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) 8 & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Plaintiff has not prepaid the $400 in filing and administrative fees required to 10 commence this civil action, nor has he submitted a properly supported Motion to Proceed 11 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 12 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 13 II. Conclusion and Order 14 For the reasons set forth above, the Court hereby: 15 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 16 $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 17 28 U.S.C. §§ 1914(a) and 1915(a); and 18 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 19 filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) 20 complete and file a Motion to Proceed IFP which includes a certified copy of his trust 21 account statement for the 6-month period preceding the filing of his Complaint. See 28 22 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 23 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. 26 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to 27 proceed IFP. Id. 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 45 days, this action will 5 ||remain dismissed without prejudice based on Plaintiffs failure to satisfy 28 U.S.C. 6 ||§ 1914(a)’s fee requirements and without further Order of the Court. 7 IT IS SO ORDERED. 8 || Dated: May 7, 2020 & ° Hon. Cathy Ann Bencivengo 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ; Q2AWeicyNRAD_CAR_TT R
Cites, in this corpus
- Lonnie Williams, Jr. v. Daniel Paramo 13-56004 · 2015-01-07