Fernandez v. Metropolitan Correctional Center
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court considered a pro se prisoner's civil rights complaint filed without a filing fee or a properly supported motion to proceed in forma pauperis. The court dismissed the action without prejudice and granted the plaintiff 45 days to pay the fee or submit the required trust account statements.
| What the court decided | The model |
|---|---|
Dismissal of the action without prejudice for failure to pay the filing fee or file a properly supported motion 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 properly supported Motion to Proceed in Forma Pauperis pursuant to 28 U.S.C. §§ 1914(a) and 1915(a)” | agree with court The dismissal is procedurally correct because the plaintiff failed to satisfy the mandatory requirements of 28 U.S.C. § 1914(a) (payment of fee) or 28 U.S.C. § 1915(a) (proper IFP motion with trust account statements). The court correctly identified that it could not assess the partial fee under § 1915(b)(1) without the required account statements. Dismissing without prejudice allows the plaintiff to cure the defect, which is consistent with Ninth Circuit precedent regarding prisoner IFP motions. |
Grant of 45 days' leave to pay the fee or submit certified trust account statements.“GRANTS Plaintiff forty-five (45) days’ leave from the date on which this Order is electronically docketed to either: (a) prepay the entire $402 civil filing and administrative fee in full, or (b) “submit a certified copy of the trust fund account statement...” | agree with court Granting leave to cure a procedural deficiency in a pro se prisoner case is a standard and equitable exercise of discretion. The deadline is reasonable and the requirements are clearly stated, aligning with local rules and federal statute. |
The order itself: sound — The order correctly applies the statutory requirements for prisoner IFP motions. It accurately cites the relevant Ninth Circuit precedent regarding the necessity of trust account statements to calculate the initial partial payment under the Prison Litigation Reform Act. The reasoning is direct and the result follows logically from the plaintiff's failure to provide the required documentation.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARCELO LARIOS FERNANDEZ, Case No.: 21-CV-1011 JLS (DEB) Inmate # 87515-298, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE v. FOR FAILING TO PAY FILING FEE 14 REQUIRED BY 28 U.S.C. § 1914(a)
15 AND/OR FAILING TO FILE METROPOLITAN CORRECTIONAL PROPERLY SUPPORTED MOTION 16 CENTER, TO PROCEED IN FORMA 17 Defendant. PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 Plaintiff Marcelo Larios Fernandez (“Plaintiff”), currently incarcerated at the 21 Metropolitan Correctional Center (“MCC”) in San Diego, California, is proceeding pro se 22 in this action brought pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). 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 $402. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 26 27 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 28 1 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 2 pursuant to 28 U.S.C. §1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 3 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff 4 is a prisoner, even if he is granted leave to commence his suit IFP, he remains obligated to 5 pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th 6 Cir. 2015), regardless of whether his case is ultimately dismissed, see 28 U.S.C. 7 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 8 Plaintiff filed this case on May 26, 2021. See generally Compl. At that time, 9 Plaintiff did not pay the $402 civil and administrative filing fee or file a Motion to Proceed 10 IFP. Subsequently, on June 23, 2021, Plaintiff submitted a Motion to Proceed IFP, but 11 without attaching the certified copies of Plaintiff’s trust account statements “for the 6- 12 month period immediately preceding the filing of the complaint . . . obtained from the 13 appropriate official of [the] prison at which [Plaintiff] is . . . confined,” as required by 28 14 U.S.C. § 1915(a)(2) See generally ECF No. 2 (“IFP Mot.”). Without copies of Plaintiff’s 15 trust account statements from the relevant period, the Court cannot assess what, if any, 16 partial filing fee may be required by 28 U.S.C. § 1915(b)(1). Accordingly, Plaintiff’s case 17 cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 18 CONCLUSION 19 For the reasons set forth above, the Court hereby: 20 (1) DISMISSES this action sua sponte WITHOUT PREJUDICE for failure to 21 pay the $402 civil filing and administrative fee or to submit a properly supported Motion 22 to Proceed in Forma Pauperis pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and 23 (2) GRANTS Plaintiff forty-five (45) days’ leave from the date on which this 24 Order is electronically docketed to either: (a) prepay the entire $402 civil filing and 25 administrative fee in full, or (b) “submit a certified copy of the trust fund account statement 26 27 Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed 28 1 institutional equivalent) for [Plaintiff] for the 6-month period immediately preceding 2 || the filing of the complaint... obtained from the appropriate official of [the] prison at 3 || which [Plaintiff] is ... confined.” See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 4 IT IS FURTHER ORDERED that if Plaintiff fails to either prepay the $402 civil 5 || filing and administrative fee or submit the necessary certified copies of his trust account 6 || statements within 45 days, this action will remain dismissed without prejudice and without 7 || further Order of the Court based on Plaintiff's failure to satisfy the fee requirements of 28 8 ||U.S.C. § 1914(a). 9 IT IS SO ORDERED. 10 || Dated: June 29, 2021 . tt 11 pee Janis L. Sammartino United States District Judge 13 14 15 16 17 18 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