Tarquinii v. Harker
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (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 45 days to pay the fee or file a proper IFP 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 $402 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a), and S.D. Cal. Civ.LR 3.2” | agree with court The dismissal is procedurally correct because 28 U.S.C. § 1914(a) mandates a filing fee for civil actions, and 28 U.S.C. § 1915(a) provides the exclusive statutory mechanism for waiving that fee. The order recites that the plaintiff failed to satisfy either requirement. Dismissing without prejudice is the standard remedy to allow the plaintiff to cure the defect, consistent with the local rule cited. |
Granting 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 $402 civil filing and administrative fee in full; or (b) complete and file a Motion to Proceed IFP” | agree with court The court has discretion to set a deadline for curing a procedural defect. The 45-day period is reasonable and aligns with the local rule cited (S.D. Cal. Civ.LR 3.2). |
The order itself: sound — The order correctly identifies the statutory requirements for filing a civil action and the exclusive remedy for fee waiver. It cites the correct Ninth Circuit precedent regarding the necessity of IFP status to proceed without prepayment. The dismissal without prejudice and the grant of time to cure are standard and appropriate procedural measures. The reasoning is concise but legally sufficient for a procedural dismissal.
How this analysis was made · dispute it
inconsistent with cited authorityOpinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAWAN N. TARQUINII, Case No.: 3:21-cv-0350-CAB-WVG 12 Plaintiff, ORDER DISMISSING CIVIL 13 vs. ACTION WITHOUT PREJUDICE FOR FAILING TO PAY 14 FILING FEE REQUIRED THOMAS W. HARKER, ACTING 15 BY 28 U.S.C. § 1914(a) AND/OR SECRETARY, US DEPARTMENT OF FAILING TO MOVE TO PROCEED 16 THE NAVY, IN FORMA PAUPERIS 17 Defendant. PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 Plaintiff Jawan N. Tarquinii (“Plaintiff”), proceeding pro se, has filed a civil action. 21 (ECF No. 1). 22 I. Failure to Pay Filing Fee or Request In Forma Pauperis (“IFP”) Status 23 All parties instituting any civil action, suit or proceeding in a district court of the 24 United States, except an application for writ of habeas corpus, must pay a filing fee of 25 /// 26 /// 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, nor has she submitted a properly supported Motion to 12 Proceed IFP pursuant to 28 U.S.C. § 1915(a). Therefore, her case cannot yet proceed. 13 See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 14 II. Conclusion and Order 15 For the reasons set forth above, the Court hereby: 16 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 17 $402 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 18 28 U.S.C. §§ 1914(a) and 1915(a), and S.D. Cal. Civ.LR 3.2; and 19 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 20 filed to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) 21 complete and file a Motion to Proceed IFP. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 22 3.2. 23 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative 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 28 1 || with this Court’s approved form “Motion and Declaration in Support of Motion to 2 Proceed In Forma Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or 3 ||complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will 4 ||remain dismissed without prejudice based on Plaintiff's failure to satisfy the fee 5 || requirements of 28 U.S.C. Section 1914(a) and without further Order of the Court. 6 IT IS SO ORDERED. 7 Dated: February 26, 2021 © Z 8 Hon. Cathy Ann Bencivengo ? United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 oe
Cites, in this corpus
- Lonnie Williams, Jr. v. Daniel Paramo 13-56004 · 2015-01-07