Frost v. Child and Family Services of San Bernardino County
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court reviewed a pro se civil action 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 thirty days to pay the fees or file a proper IFP motion to reopen the case.
| What the court decided | The model |
|---|---|
Dismissal of the civil action without prejudice for failure to pay filing fees or request IFP status“DISMISSES this action sua sponte without prejudice for failing 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 decision follows directly from the statutory requirement that civil actions must be accompanied by a filing fee or a valid IFP motion. The order recites that the plaintiff failed to do either, making dismissal the mandatory procedural consequence. |
Granting of a 30-day period to reopen the case by paying fees or filing an IFP motion“GRANTS Plaintiff thirty (30) days from the date of this Order to re-open his case by: (a) Prepaying the entire $400 civil filing and administrative fee required by 28 U.S.C. § 1914(a) in full; or (b) Completing and filing a Motion to Proceed IFP with an affidavit that includes a statement of all Plaintiff’s assets as required by 28 U.S.C. § 1915(a)(1) and S.D. Cal. CivLR 3.2(b).” | agree with court Providing a grace period for pro se litigants to cure a procedural defect in fee payment is a common and equitable practice in the Ninth Circuit, allowing the court to manage its docket while respecting the plaintiff's right of access to the courts. |
The order itself: sound — The order correctly identifies the procedural defect (lack of fees/IFP motion) and applies the correct statutory and case law authorities to dismiss the case without prejudice. It provides a clear path for the plaintiff to cure the defect.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RYAN FROST, Case No.: 3:20-cv-2402-JLS-BLM 12 Plaintiff, ORDER DISMISSING CIVIL 13 vs. ACTION FOR FAILURE TO PAY FILING FEES REQUIRED BY 14 CHILD AND FAMILY SERVICES OF 28 U.S.C. § 1914(a) SAN BERNARDINO COUNTY, and 15 SAN BERNARDINO JUVENILE 16 COURT, (ECF No. 1) 17 Defendants. 18 19 Plaintiff Ryan Frost, proceeding pro se, filed this action against Defendants Child 20 and Family Services of San Bernardino County and San Bernardino Juvenile Court on 21 December 8, 2020. See ECF No. 1. Plaintiff is alleging Fourth and Fourteenth 22 Amendments violations based on Defendants placing Plaintiff’s three children in foster 23 care. 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). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 4 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Section 1915(a)(2) 5 requires all persons seeking to proceed without full prepayment of fees to submit an 6 affidavit that includes a statement of all assets possessed and which demonstrates an 7 inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). 8 Plaintiff has not prepaid the $400 in filing and administrative fees required to 9 commence this civil action, nor has he submitted a properly supported Motion to Proceed 10 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 11 § 1914(a); Andrews, 493 F.3d at 1051. 12 II. Conclusion and Order 13 Accordingly, the Court: 14 (1) DISMISSES this action sua sponte without prejudice for failing to pay the 15 $400 civil filing and administrative fee or to submit a motion to proceed IFP pursuant to 16 28 U.S.C. §§ 1914(a) and 1915(a); and 17 (2) GRANTS Plaintiff thirty (30) days from the date of this Order to re-open his 18 case by: 19 (a) Prepaying the entire $400 civil filing and administrative fee required by 20 28 U.S.C. § 1914(a) in full; or 21 (b) Completing and filing a Motion to Proceed IFP with an affidavit that 22 includes a statement of all Plaintiff’s assets as required by 28 U.S.C. § 1915(a)(1) 23 and S.D. Cal. CivLR 3.2(b). 24 /// 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 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 proceed 28 1 If Plaintiff fails to comply with these instructions within 30 days, this action will 2 |}remain dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s 3 requirements and without further Order of the Court. 4 IT IS SO ORDERED. 5 Dated: January 6, 2021 . tt f te 6 on. Janis L. Sammartino 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 3