Dr. Mickey Socrates Ferdynand v. University of California
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court reviewed a pro se 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 30 days to pay the fee or file a proper IFP motion.
| What the court decided | The model |
|---|---|
Dismissal of the civil action 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 court correctly applied 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, which is a procedural prerequisite for the court to exercise jurisdiction over the merits. Dismissing without prejudice allows the plaintiff to cure the defect, which is the standard procedure in the Ninth Circuit for this deficiency. |
Grant of 30 days to cure the filing fee deficiency“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” | agree with court Providing a deadline to cure a procedural defect before final dismissal is consistent with local rules and general federal practice to ensure due process for pro se litigants. |
The order itself: sound — The order is a standard procedural dismissal. It correctly identifies the statutory requirements for filing fees and IFP status, cites binding Ninth Circuit precedent supporting the dismissal for non-compliance, and provides a clear mechanism for the plaintiff to cure the defect. The reasoning is complete for the specific procedural issue raised.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DR. MICKEY SOCRATES Case No.: 21cv160-CAB-BGS FERDYNAND, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO PAY v. FILING FEES REQUIRED BY 28 14 U.S.C. Section 1914(a) UNIVERSITY OF CALIFORNIA II UC 15 SAN DIEGO, et al, 16 Defendants. 17 18 Plaintiff Dr. Mickey Socrates Ferdynand, proceeding pro se, filed this action 19 against Defendants University of California, University of California San Diego, Western 20 Association of Schools and Colleges, and U.S. Department of Education on January 28, 21 2021. See ECF No. 1. Plaintiff is alleging conversion of property. 22 I. Failure to Pay Filing Fee or Request IFP Status 23 All parties instituting any civil action, suit, or proceeding in a district court of the 24 / / / / / 25 / / / / / 26 / / / / / 27 / / / / / 28 1 United States, except an application for writ of habeas corpus, must pay a filing fee of 2 $400. See 28 U.S.C. § 1914(a).1 The action may proceed despite a plaintiff’s failure to 3 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 4 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th 5 Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Section 1915(a)(2) 6 requires all persons seeking to proceed without full prepayment of fees to submit an 7 affidavit that includes a statement of all assets possessed and which demonstrates an 8 inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). 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. § 1915(a). Therefore, his case cannot yet proceed. See 28 12 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 13 II. Conclusion and Order 14 Accordingly, the Court: 15 (1) DISMISSES this action sua sponte without prejudice for failing 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. §§ 1914(a) and 1915(a); and 18 (2) GRANTS Plaintiff thirty (30) days from the date of this Order to re-open his 19 case by: 20 (a) Prepaying the entire $400 civil filing and administrative fee required by 21 28 U.S.C. § 1914(a) in full; or 22 (b) Completing and filing a Motion to Proceed IFP with an affidavit that 23 includes a statement of all Plaintiff’s assets as required by 28 U.S.C. § 1915(a)(1) 24 and S.D. Cal. CivLR 3.2(b). 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. 27 See 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 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 || fee requirements and without further Order of the Court. 4 IT IS SO ORDERED. 5 Dated: January 28, 2021 € □ 6 Hon. Cathy Ann Bencivengo 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