Daniels v. Fry
- Proceeding
- district
- Area
- civil
- Panel
- William Q. Hayes (author)
Analysis
The court reviewed a civil complaint filed without the required filing fee or a motion to proceed in forma pauperis. The court dismissed the action without prejudice and granted the plaintiff 60 days to pay the fee or file a motion for in forma pauperis status.
| What the court decided | The model |
|---|---|
Dismissal of the action without prejudice for failure to pay filing fees or request in forma pauperis status“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 in forma pauperis pursuant to 28 U.S.C. section 1914(a) and section 1915(a)” | agree with court The decision follows directly from 28 U.S.C. § 1914(a) and 28 U.S.C. § 1915(a), which require payment of fees or a grant of IFP status for an action to proceed. The order recites that the plaintiff did neither, making dismissal the mandatory procedural consequence. |
Grant of 60 days to pay fees or file IFP motion“GRANTS Plaintiff sixty (60) 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 in forma pauperis.” | agree with court Granting a deadline to cure a procedural defect before final dismissal is a standard exercise of discretion consistent with local rules and the purpose of the fee statutes. |
The order itself: sound — The order correctly identifies the statutory requirements for commencing an action, cites the relevant Ninth Circuit precedent confirming that IFP status is the only alternative to fee payment, and applies these rules to the undisputed fact that the plaintiff filed neither. The reasoning is complete for this procedural stage.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DIANE DELIAH DANIELS, Case No.: 3:20-cv-02226-WQH-MSB 12 Plaintiff, ORDER 13 v. 14 DARYL FRY, et. al., 15 Defendants. 16 HAYES, Judge: 17 On November 9, 2020, Plaintiff Diane Deliah Daniels initiated this action by filing 18 a Complaint against Defendants Daryl Fry, Jayson Stebbins, Michael Roddy, John Meyer, 19 Brian Moynihan, Gerald Hassell, Brian Richard, Thomas Gibbons, Gary Kreep, Joel 20 Wohlfeil, William Gore, Mark Milton, Jamie Felix, Casey James, Edward Bishop, David 21 Nisleit, Keneth Medel, Peter Doft, Scott Hildebrand, Timothy Walsh, Jaime Murillo, 22 Elizabeth Chen, and Aledra Retano. (ECF No. 1). The record reflects no further filings in 23 this case. 24 I. Failure to Pay Filing Fee or Request in Forma Pauperis 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 she is granted leave to proceed in forma pauperis pursuant to 3 28 U.S.C. section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 4 Plaintiff has not prepaid the $400 in filing and administrative fees required to 5 commence this civil action, nor has she submitted a properly supported motion to proceed 6 in forma pauperis pursuant to 28 U.S.C. section 1915(a). Therefore, this case cannot yet 7 proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 8 II. Conclusion 9 For the reasons set forth above, the Court hereby: 10 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 11 $400 civil filing and administrative fee or to submit a motion to proceed in forma pauperis 12 pursuant to 28 U.S.C. section 1914(a) and section 1915(a); and 13 (2) GRANTS Plaintiff sixty (60) days leave from the date this Order is filed to: 14 (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete and file 15 a motion to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 16 3.2. 17 18 19 20 21 22 23 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 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 administrative fee does 28 1 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with 2 ||this Court’s approved form “Motion and Declaration in Support of Motion to Proceed in 3 || Forma Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or complete 4 ||and submit the enclosed motion to proceed in forma pauperis within 60 days, this action 5 || will 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: November 25, 2020 BE: te Z. A a 9 Hon, William Q. Hayes 10 United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28