Titi v. City of San Diego Municipality
- Proceeding
- district
- Area
- civil
- Panel
- Dana M. Sabraw (author)
Analysis
Plaintiff Kathryn M. Titi, proceeding pro se, filed a complaint and a motion to proceed in forma pauperis (IFP) without prepaying the required filing fees. The court denied the IFP motion because the supporting affidavit was unsigned and the financial information did not demonstrate an inability to pay, and it dismissed the action without prejudice, granting the plaintiff 45 days to pay the fees or file a proper IFP motion.
| What the court decided | The model |
|---|---|
Denial of Plaintiff's Motion to Proceed In Forma Pauperis“For the reasons set forth above, the Court hereby: (1) 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 IFP pursuant to 28 U.S.C. Section 1914(a) and Section 1915(a);” | agree with court The court correctly identified that the IFP application was procedurally defective because the 'Affidavit in Support of the Application' was not signed, rendering it not executed under penalty of perjury as required by S.D. Cal. Civ. L.R. 3.2(b). Additionally, the court noted that even if signed, the financial data (income of $8,856-$10,000/month vs. expenses of $5,300/month) did not support a claim of inability to pay. The denial is supported by the record recited in the order. |
Dismissal of Complaint Without Prejudice“(1) 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 IFP pursuant to 28 U.S.C. Section 1914(a) and Section 1915(a);” | agree with court Under 28 U.S.C. § 1915(a)(2), a court must dismiss an action if the plaintiff fails to prepay the filing fee and is not granted leave to proceed IFP. Because the IFP motion was denied due to procedural and substantive deficiencies, dismissal without prejudice is the standard procedural remedy to allow the plaintiff to cure the defect (pay the fee or file a proper IFP motion) within a set timeframe. |
The order itself: sound — The order is procedurally sound. It correctly applies the statutory fee requirements of 28 U.S.C. § 1914(a) and the IFP provisions of 28 U.S.C. § 1915(a). The court properly cites Ninth Circuit precedent to support the necessity of IFP approval for proceeding without prepayment. The dismissal is based on clear procedural grounds (unsigned affidavit) and substantive grounds (financials do not show inability to pay), and the court provides a reasonable opportunity to cure the defect. No significant legal arguments or authorities are omitted that would change the outcome.
Opinion
8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10
11 Kathryn M. Titi, Case Nos. 12 22-CV-1561-DMS-KSC 13 Plaintiff, ORDER (1) DENYING 14 v. PLAINTIFF’S MOTION TO 15 PROCEED IN FORMA PAUPERIS City of San Diego Municipality, AND (2) DISMISSING 16 COMPLAINT WITHOUT 17 Defendant. PREJUDICE 19 Plaintiff Kathryn M. Titi, a non-prisoner proceeding pro se, has submitted a 20 Complaint along with a request to proceed in forma pauperis (“IFP”). 21 I. Motion to Proceed IFP 22 All parties instituting any civil action, suit or proceeding in a district court of the 23 United States, except an application for writ of habeas corpus, must pay a filing fee of 24 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 25 26 27 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of 1 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 2 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 3 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999); Escobedo v. Applebees, 787 4 F.3d 1226, 1234 (9th Cir. 2015) (internal quotation marks and citations omitted). 5 Plaintiff has not prepaid the $402 in filing and administrative fees required to 6 commence this civil action. Although Plaintiff has filed a Motion for Leave to Proceed 7 IFP, she has not signed the section within her application designated as her “Affidavit 8 in Support of the Application.” (ECF No. 2.) Without her signature, the Court cannot 9 accept her declaration as executed under penalty of perjury. See S.D. Cal. Civ. L.R. 10 3.2(b)). As a result, Plaintiff’s case cannot yet proceed. 11 Even if Plaintiff’s affidavit had been properly executed, it does not indicate her 12 inability to pay the required filing and administrative fees. Plaintiff states her total 13 monthly expenses amount to $5,300.00 and notes that her application does not include 14 “other/small business costs.” (Id.) However, she has had an average monthly income 15 during the past 12 months in the amount of $8,856, presently receives gross monthly 16 pay in the amount of $10,000, and has $866 in a checking account. (Id.) 17 II. 18 CONCLUSION AND ORDER 19 For the reasons set forth above, the Court hereby: 20 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 21 $402 civil filing and administrative fee or to submit a properly supported Motion to 22 Proceed IFP pursuant to 28 U.S.C. Section 1914(a) and Section 1915(a); and 23 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 24 filed to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) 25 26 27 administrative fee does not apply to persons granted leave to proceed in forma 1 || complete and file a properly executed Motion to Proceed IFP. See 28 U.S.C. §1915(a 2 ||S.D. Cal. Civ. L.R. 3.2(b). 3 If Plaintiff fails to either prepay the $402 civil filing fee or complete and subm. 4|/a properly supported Motion to Proceed IFP within 45 days, this action will remai 5 || dismissed without prejudice based on Plaintiff’s failure to satisfy the fee requirement 6 || of 28 U.S.C. Section 1914(a) and without further Order of the Court. 7 IT IS SO ORDERED. 8 || Dated: November 16, 2022 9 2 Vine WN. 10 Hon. Dana M. Sabraw, Chief Judge United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28