Sims v. CDCR
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
The court reviewed a pro se prisoner's civil complaint filed without the required $402 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 for IFP status“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)” | agree with court The court correctly applied the statutory requirement that civil actions must be accompanied by a filing fee or a granted IFP motion. The order recites that the plaintiff failed to do either, making dismissal the only procedural option available to the court at that stage. The dismissal is without prejudice, preserving the plaintiff's right to refile or cure the defect within the given timeframe. |
Granting of 45 days leave to pay fee or file 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 Motion to Proceed IFP” | agree with court While the court has the authority to dismiss immediately, granting a short period to cure the defect is a common and equitable practice for pro se litigants, particularly when the defect is purely procedural (failure to pay fee/file IFP motion) rather than substantive. The 45-day period is reasonable and aligns with local rules and general judicial practice. |
The order itself: sound — The order is procedurally sound. It correctly identifies the statutory prerequisites for commencing a civil action (fee or IFP), cites the relevant Ninth Circuit precedent confirming that failure to meet these prerequisites prevents the action from proceeding, and applies the local rule regarding prisoner IFP documentation. The remedy (dismissal without prejudice with a cure period) is appropriate and standard for this type of procedural defect.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:21-cv-1529-BAS-AGS TONY L. SIMS, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE v. FOR FAILING TO PAY 14 FILING FEE REQUIRED CALIFORNIA DEPARTMENT 15 BY 28 U.S.C. § 1914(a) AND/OR OF CORRECTIONS AND FAILING TO MOVE TO PROCEED 16 REHABILITATION, IN FORMA PAUPERIS 17 Defendant. PURSUANT TO 28 U.S.C. § 1915(a) 18 19 20 TONY L. SIMS (“Plaintiff”), currently incarcerated at California City Correctional 21 Facility located in California City, California, and proceeding pro se, has filed a Petition 22 for Writ of Mandamus and Complaint. (ECF No. 1). Plaintiff has not prepaid the $402 23 civil filing fee required by 28 U.S.C. § 1914(a), however, and has not filed a Motion to 24 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 25 26 I. Failure to Pay Filing Fee or Request IFP Status 27 All parties instituting any civil action, suit or proceeding in a district court of the 1 United States, except an application for writ of habeas corpus, must pay a filing fee of 2 $402. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 3 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 4 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 5 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a prisoner, and 6 even if he is granted leave to commence his suit IFP, he remains obligated to pay the entire 7 filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 8 regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); 9 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 10 Plaintiff has not prepaid the $402 in filing and administrative fees required to 11 commence this action, nor has he submitted a properly supported Motion to Proceed IFP 12 pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 13 § 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 19 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 20 to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 21 file a Motion to Proceed IFP which includes a certified copy of his trust account statement 22 for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 23 S.D. Cal. CivLR 3.2(b). 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 26 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 27 proceed IFP. Id. 1 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 Proceed 3 In Forma Pauperis.” If Plaintiff fails to either prepay the $402 civil filing fee or complete 4 and submit the enclosed Motion to Proceed IFP within 45 days, this action will remain 5 dismissed without prejudice based on Plaintiff’s failure to satisfy 28 U.S.C. § 1914(a)’s fee 6 requirements and without further Order of the Court. 7 IT IS SO ORDERED. 8 Dated: August 31, 2021 9 Cynthia Bashant United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Cites, in this corpus
- Lonnie Williams, Jr. v. Daniel Paramo 13-56004 · 2015-01-07