Jones v. San Diego Police
- Proceeding
- district
- Area
- civil
- Panel
- Dana M. Sabraw (author)
Analysis
The court reviewed a pro se civil rights complaint filed by a prisoner who failed to pay the filing fee and submitted an incomplete in forma pauperis motion lacking certified trust account statements. The court dismissed the action without prejudice and granted the plaintiff 45 days to either pay the fee or file a compliant IFP motion.
| What the court decided | The model |
|---|---|
Dismissal of the action without prejudice for failure to pay the filing fee or submit a properly supported IFP motion“DISMISSES this action sua sponte without prejudice for failure to pay the $402 civil filing and administrative fee or to submit a properly supported Motion to Proceed IFP pursuant to 28 U.S.C. Section 1914(a) and Section 1915(a)” | agree with court The court correctly applied 28 U.S.C. § 1914(a) and § 1915(a). The plaintiff failed to provide the certified trust account statement required by § 1915(a)(2), which is a prerequisite for the court to determine IFP eligibility and assess the initial partial fee under the Prison Litigation Reform Act. Dismissal without prejudice is the standard procedural remedy when a plaintiff fails to satisfy these threshold requirements, allowing them to cure the defect. |
Grant of 45 days leave to prepay fee or file compliant IFP motion“GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and file a properly supported Motion to Proceed IFP.” | agree with court Granting a specific period to cure a procedural deficiency in a pro se prisoner case is consistent with the liberal construction afforded to pro se pleadings and the requirements of S.D. Cal. Civ. L.R. 3.2(b). It provides a clear path for the plaintiff to reinstate the action. |
The order itself: sound — The order is procedurally sound. It correctly identifies the statutory requirements for prisoner IFP motions under 28 U.S.C. § 1915(a)(2), specifically the need for certified trust account statements. The court properly cites Ninth Circuit precedent regarding the consequences of failing to meet these requirements and the ongoing obligation to pay fees under the PLRA. The remedy of dismissal without prejudice with a deadline to cure is appropriate and standard for this type of procedural failure.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CEDRICK D. JONES, Case No.: 3:21-cv-00073-DMS-KSC Booking # 20940268, 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 SAN DIEGO POLICE, et al., FAILING TO MOVE TO PROCEED 16 Defendants. IN FORMA PAUPERIS 17 PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 21 Plaintiff Cedrick D. Jones (“Plaintiff”), currently detained at the George F. Bailey 22 Detention Facility, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. 23 Section 1983. (See ECF No. 1, Compl.) 24 I. Failure to Pay Filing Fee or Request In Forma Pauperis (“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 $402. 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 in forma pauperis (“IFP”) 3 pursuant to 28 U.S.C. Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 4 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 5 Plaintiff is a prisoner, and even if he is granted leave to commence his suit IFP, he 6 remains obligated to pay the entire filing fee in “increments,” see Williams v. Paramo, 7 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 8 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 9 (9th Cir. 2002). 10 Plaintiff has not prepaid the $402 in filing and administrative fees required to 11 commence this civil action. Although Plaintiff has filed a Motion for Leave to Proceed 12 IFP, (see ECF No. 2), he has not attached “a certified copy of the trust account statement 13 (or institutional equivalent) for [Plaintiff] for the 6-month period immediately preceding 14 the filing of the complaint . . . obtained from the appropriate official of each prison at 15 which the prisoner is or was confined” as required by 28 U.S.C. Section 1915(a)(2). The 16 trust account statements attached to Plaintiff’s Motion to Proceed IFP and prison 17 certificate are not signed by an official at George Bailey Detention Facility. (See ECF 18 No. 2, at 4-5.) Without the certified trust account statements, the Court cannot determine 19 whether Plaintiff is entitled to proceed IFP or assess what, if any, initial partial filing fee 20 may be due. See 28 U.S.C. § 1915(a), (b)(1). As a result, Plaintiff’s case cannot yet 21 proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 22 \\\ 23 \\\ 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additionaladministrative 27 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative 28 1 II. Conclusion and Order 2 For the reasons set forth above, the Court hereby: 3 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 4 $402 civil filing and administrative fee or to submit a properly supported Motion to 5 Proceed IFP pursuant to 28 U.S.C. Section 1914(a) and Section 1915(a); and 6 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 7 filed to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) 8 complete and file a properly supported Motion to Proceed IFP. See 28 U.S.C. 9 § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 10 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 11 with this Court’s approved form “Motion and Declaration in Support of Motion to 12 Proceed In Forma Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or 13 complete and submit a properly supported Motion to Proceed IFP within 45 days, this 14 action will remain dismissed without prejudice based on Plaintiff’s failure to satisfy the 15 fee requirements of 28 U.S.C. Section 1914(a) and without further Order of the Court. 16 IT IS SO ORDERED. 17 Dated: 1/28/2021 18 Hon. Dana M. Sabraw Chief United States District Judge 19 20 21 22 23 24 25 26 27 28
Cites, in this corpus
- Lonnie Williams, Jr. v. Daniel Paramo 13-56004 · 2015-01-07