Bonilla v. Houston
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court reviewed a civil complaint filed by a pro se prisoner who had not paid the required filing fee or submitted 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 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 under 28 U.S.C. § 1915(a). The order recites that the plaintiff did neither. Dismissing without prejudice allows the plaintiff to cure the defect, which is the standard procedural remedy in this context. |
Granting plaintiff 30 days to pay the filing fee or file a motion to proceed in forma pauperis.“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” | agree with court Granting a short period to cure a procedural deficiency before final dismissal is consistent with judicial practice and the purpose of the IFP statute to ensure access to the courts for indigent litigants. The requirement for 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 (payment of fees or IFP status) and applies them to the facts recited (plaintiff did neither). It cites appropriate Ninth Circuit authority to support the procedural requirements and the consequences of non-compliance. The remedy (dismissal without prejudice with a chance 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 STEVEN WAYNE BONILLA, Case No.: 3:20-cv-00898-CAB-KSC 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 JOHN A HOUSTON, FAILING TO MOVE TO PROCEED 16 Defendants. IN FORMA PAUPERIS 17 PURSUANT TO 28 U.S.C. § 1915(a) 18 20 21 22 Plaintiff Steven Wayne Bonilla, proceeding pro se and currently incarcerated at San 23 Quentin State Prison has filed a civil action. (See ECF No. 1, Compl.) 24 I. Failure to Pay Filing Fee or Request IFP Status 25 All parties instituting any civil action, suit or proceeding in a 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 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 Section 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). However, if the Plaintiff is a 5 prisoner, and even if he is granted leave to commence his suit IFP, he remains obligated 6 to pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 7 (9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 8 1915(b)(1) & (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. Section 1915(a). Therefore, his case cannot yet proceed. See 12 28 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. Section 1914(a) and Section 1915(a); and 18 (2) GRANTS Plaintiff thirty (30) days leave from the date this Order is filed 19 to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete 20 and file a Motion to Proceed IFP which includes a certified copy of his trust account 21 statement for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. 22 § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 23 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 Plaintiff’s 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 ||Dated: May 15, 2020 (6 9 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 28 3
Cites, in this corpus
- Lonnie Williams, Jr. v. Daniel Paramo 13-56004 · 2015-01-07