Wilson v. Santana
- Proceeding
- district
- Area
- civil
- Panel
- Ruth Bermudez Montenegro (author)
Analysis
The court reviewed a pro se prisoner's civil rights complaint that was filed without the required $402 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 file a compliant 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 civil action sua sponte without prejudice based on Plaintiff’s 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 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. The order recites that the plaintiff failed to pay the fee and failed to file a properly supported IFP motion (citing only a trust account statement). Dismissing without prejudice allows the plaintiff to cure the defect, which is the standard remedy in this circuit for this specific procedural failure. |
Grant of 45 days 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 which includes a certified copy of his trust account statement for the 6-month period preceding the filing of his Complaint.” | agree with court Granting a specific period to cure a procedural defect (failure to pay fee/file IFP) is within the court's discretion and consistent with local rules and federal practice to avoid immediate dismissal where a simple administrative step can fix the issue. |
The order itself: sound — The order correctly identifies the procedural deficiency (failure to pay fee or file IFP motion) and applies the correct statutory and case law authorities to dismiss the case without prejudice. It provides a clear path for the plaintiff to cure the defect. The reasoning is complete for the specific issue of fee payment/IFP status.
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 GERALD J. WILSON, Case No.: 3:23-cv-00250-RBM-DDL CDCR No. B93800, 11 ORDER DISMISSING CIVIL Plaintiff, 12 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY 13 FILING FEE REQUIRED 14 BY 28 U.S.C. § 1914(a) AND/OR J. SANTANA, Associate Warden, et al., FAILING TO MOVE TO PROCEED 15 Defendants. IN FORMA PAUPERIS 16 PURSUANT TO 28 U.S.C. § 1915(a) 17 18 19 Plaintiff Gerald J. Wilson (“Plaintiff” or “Wilson”), proceeding pro se and currently 20 housed at R.J. Donovan State Prison located in San Diego, California, has filed this civil 21 rights action pursuant to 42 U.S.C. § 1983. (See Doc. 1) (herein “Compl.”). 22 I. Failure to Pay Filing Fee or Request 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 $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 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. Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 3 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 4 Plaintiff is a prisoner, and even if he is granted leave to commence his suit IFP, he remains 5 obligated to pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 6 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 7 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 8 Plaintiff has not prepaid the $402 in filing and administrative fees required to 9 commence this civil action, and although he has filed a trust account statement (Doc. 2), 10 he has not submitted a properly supported Motion to Proceed IFP pursuant to 28 U.S.C. 11 § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 12 F.3d at 1051. 13 II. Conclusion and Order 14 Accordingly, the Court: 15 (1) DISMISSES this civil action sua sponte without prejudice based on 16 Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit a Motion 17 to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 18 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 19 to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 20 file a Motion to Proceed IFP which includes a certified copy of his trust account statement 21 for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 22 S.D. Cal. Civ. L.R. 3.2(b). 23 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s 24 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 25 Pauperis.” But if Plaintiff fails to either prepay the $402 civil filing fee or complete and 26 27 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does 28 1 submit the enclosed Motion to Proceed IFP within 45 days, this action will be dismissed 2 || without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirements.” 3 IT IS SO ORDERED. 4 ||DATE: February 14, 2023 6 HON TRUTH BERMUDEZ'MONTENEGRO UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ||* Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full 99 $402 civil filing fee, or submitting a properly supported Motion to Proceed IFP, his Complaint will be screened before service and may be dismissed sua sponte pursuant to 28 23 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full $402 filing fee at once, or is granted IFP status and is obligated to pay the full filing fee in installments. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 25 ||(noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, 6 or seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621 27 || F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. 28 § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.”).