Dorsey v. Paramo
- Proceeding
- district
- Area
- civil
- Panel
- John A. Houston (author)
Analysis
The court reviewed a pro se civil rights complaint filed by an incarcerated plaintiff who failed to pay the filing fee or submit a proper 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 the required 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 order correctly identifies that 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 record indicates the plaintiff did not pay the fee and did not file a properly supported motion for IFP status, despite providing the required trust account statements. Dismissing without prejudice allows the plaintiff to cure the defect, which is consistent with the statutory framework and Ninth Circuit precedent cited in the order. |
Grant 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 deficiency before final dismissal is a common and appropriate exercise of judicial discretion to ensure due process for pro se litigants, particularly when the dismissal is without prejudice. The order cites the local rule (S.D. Cal. Civ. L.R. 3.2(b)) supporting this procedure. |
The order itself: sound — The order is procedurally sound. It correctly applies the statutory requirements for filing fees and IFP status, cites relevant Ninth Circuit precedent to support the legal standards, and provides a clear path for the plaintiff to cure the deficiency. The reasoning directly addresses the motion (or lack thereof) and the statutory prerequisites for commencing the action.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JESSIE DORSEY, Case No.: 3:20-cv-00843-JAH-LL CDCR #AF-6022, 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 D. PARAMO, et al., FAILING TO MOVE TO PROCEED 16 Defendants. IN FORMA PAUPERIS 17 PURSUANT TO 28 U.S.C. § 1915(a) 18 21 Plaintiff Jessie Dorsey, currently incarcerated at the Richard J. Donovan 22 Correctional Facility (“RJD”), is proceeding pro se in this civil rights action pursuant to 42 23 U.S.C. Section 1983. (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 a civil action. And although Plaintiff has submitted certified trust account 11 statements for the six-month period immediately preceding the filing of the complaint as 12 required by 28 U.S.C. Section 1915(a)(2), see ECF No. 3, he has not submitted a properly 13 supported Motion to Proceed IFP pursuant to 28 U.S.C. Section 1915(a). Therefore, his 14 case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 15 II. Conclusion and Order 16 For the reasons set forth above, the Court hereby: 17 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 18 $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 19 28 U.S.C. Section 1914(a) and Section 1915(a); and 20 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 21 filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) 22 complete and file a Motion to Proceed IFP. See 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. 23 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 45 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: July 10, 2020 9 n. John A. Houston 10 /nited 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