Hines v. Newsom
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court reviewed a pro se plaintiff's complaint that failed to include the required filing fee or a motion to proceed in forma pauperis. The court ordered the plaintiff to pay the fee or file a proper IFP motion within 30 days, warning that failure to do so will result in dismissal.
| What the court decided | The model |
|---|---|
Ordering plaintiff to pay filing fee or move to proceed in forma pauperis within 30 days“Consequently, the Court ORDERS Plaintiff to either pay the filing fee or move proceed IFP within 30 days of the issuance of this Order.” | agree with court The court correctly identified that the plaintiff failed to satisfy the statutory requirement to pay the filing fee or obtain IFP status. The court properly applied the standard from Escobeda v. Applebees that an IFP affidavit must allege poverty with particularity, noting the complaint's vague statement was insufficient. The order to provide an opportunity to cure this deficiency before dismissal is consistent with Ninth Circuit precedent (e.g., Andrews v. Cervantes) which requires courts to give pro se litigants notice of the requirement to pay fees or move for IFP status. |
The order itself: sound — The order is procedurally sound. It correctly identifies the legal requirements for filing fees and IFP status, cites the appropriate Ninth Circuit precedent regarding the particularity required for IFP affidavits, and provides the plaintiff with a reasonable opportunity to cure the deficiency before dismissal. The reasoning directly addresses the deficiency in the plaintiff's complaint.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES LYNN HINES, Case No.: 23-CV-308 JLS (JLB)
12 Plaintiff, ORDER ORDERING PLAINTIFF TO 13 v. PAY FILING FEE OR MOVE TO PROCEED IN FORMA PAUPERIS 14 GOV. GAVIN NEWSOM, et al., and DOES 1 through 6, 15 (ECF No. 1) Defendants. 16 17 18 Presently before the Court is Plaintiff James Lynn Hines’s Complaint (“Compl.,” 19 ECF No. 1). Plaintiff, who is proceeding pro se, has neither paid the filing fee pursuant to 20 28 U.S.C. § 1914(a) nor applied to proceed in forma pauperis (“IFP”). 21 All parties instituting any civil action, suit, or proceeding in a district court of the 22 United States, except an application for writ of habeas corpus, must pay a filing fee of 23 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 24 prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. 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 28 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to 1 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 2 || Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Although the statute does not specify the 3 || qualifications for proceeding IFP, the plaintiff’s affidavit must allege poverty with some 4 particularity. Escobeda v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). Granting a 5 || plaintiff leave to proceed IFP may be proper, for example, when the affidavit demonstrates 6 || that paying court costs will result in a plaintiffs inability to afford the “necessities of life.” 7 The affidavit, however, need not demonstrate that the plaintiff is destitute. /d. 8 Here, Plaintiff's Complaint merely states that he is ““out monies and/or finances, to 9 ||pay the filing fees of the costs for this vital and pertinent case.” Compl. at 3. The 10 ||Complaint does not provide the Court with any information regarding Plaintiff's income, 11 assets, or expenses. See generally Compl. Therefore, the Court cannot determine whether 12 paying the filing fee will result in Plaintiff's inability to afford the “necessities of life.” 13 || Escobeda, 787 F.3d at 1234. 14 Consequently, the Court ORDERS Plaintiff to either pay the filing fee or move 15 proceed IFP within 30 days of the issuance of this Order. The materials needed to 16 || proceed IFP can be found at https://www.casd.uscourts.gov/forms.aspx?list=all, under the 17 || heading “Pro Se Complaint.” Failure to either pay the filing fee or to move for IFP 18 status within the 30-day deadline will result in the dismissal of Plaintiff's Complaint. 19 IT IS SO ORDERED. 20 Dated: March 7, 2023 he it. Jt, ike 21 on. Janis L. Sammartino United States District Judge 23 24 25 26 27 28