Blackmer v. Six Named Agents of the U.S. Department of Justice
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
Plaintiff Paul Blackmer, a pro se prisoner, filed a civil action against six DOJ agents but failed to pay the required filing fee or file 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 the required 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. Section 1914(a) and Section 1915(a)” | agree with court The dismissal is procedurally correct. Under 28 U.S.C. § 1914(a), a civil action cannot proceed unless the filing fee is paid or the plaintiff is granted leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). The order recites that the plaintiff has done neither. Dismissing without prejudice allows the plaintiff to cure the defect, which is the standard remedy in this context. |
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 Granting a reasonable period to cure a procedural defect before final dismissal is consistent with due process and local rules (S.D. Cal. Civ. L.R. 3.2(b)). The requirement for a certified trust account statement is mandated by 28 U.S.C. § 1915(a)(2) for prisoner plaintiffs. |
The order itself: sound — The order correctly identifies the statutory requirements for initiating a civil action. It accurately cites the relevant statutes and Ninth Circuit precedent establishing that a case cannot proceed without either full payment or a granted IFP motion. The remedy of dismissal without prejudice coupled with a deadline to cure is standard and appropriate. The reasoning is complete and directly addresses the procedural deficiency.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL BLACKMER, Case No.: 3:21-cv-00566-MMA-LL No. 71470, 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 SIX NAMED AGENTS OF THE U.S. FAILING TO MOVE TO PROCEED 16 DEP’T OF JUSTICE, IN FORMA PAUPERIS 17 Defendants. PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 21 22 23 Plaintiff Paul Blackmer, currently incarcerated at New Hampshire State Prison for 24 Men located in Concord, New Hampshire, is proceeding pro se in this civil action. See 25 Doc. No. 1. 26 I. Failure to Pay Filing Fee or Request In Forma Pauperis (“IFP”) Status 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 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 To date, Plaintiff has not paid the initial filing fee or filed a Motion to Proceed IFP. 11 Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 12 1051. 13 II. Conclusion and Order 14 For the reasons set forth above, the Court hereby: 15 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 16 $402 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 17 28 U.S.C. Section 1914(a) and Section 1915(a); and 18 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 19 filed to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) 20 complete and file a Motion to Proceed IFP which includes a certified copy of his trust 21 account statement for the 6-month period preceding the filing of his Complaint. See 28 22 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b). 23 // 24 // 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 27 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 fee does not apply to persons granted leave to 28 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 2 || with this Court’s approved form “Motion and Declaration in Support of Motion to 3 || Proceed In Forma Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or 4 complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will 5 ||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 || DATE: April 5, 2021 Wha f □□ □□ □□ 9 HON. MICHAEL M. ANELLO 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
Cites, in this corpus
- Lonnie Williams, Jr. v. Daniel Paramo 13-56004 · 2015-01-07