John C. Rodriguez v. R. Madden
- Proceeding
- district
- Area
- civil
- Panel
- Dana M. Sabraw (author)
Analysis
The court considered a motion to revoke the plaintiff's in forma pauperis status and a procedural issue regarding the plaintiff's failure to update his address. The court granted the motion to revoke IFP status and dismissed the complaint without prejudice for failure to prosecute.
| What the court decided | The model |
|---|---|
Granting Defendant's Motion to Revoke Plaintiff's In Forma Pauperis Status“Accordingly, this Court revokes Plaintiff's IFP status and orders him to either (a) prepay the full $402 civil filing and administrative fee required by 28 U.S.C. § 1914(a); or (b) file a new application to proceed IFP that includes an affidavit documenting Plaintiff's current post-release income, assets, and expenses within thirty days.” | agree with court The court correctly identified that 28 U.S.C. § 1915(b) applies specifically to prisoners. Since the plaintiff is no longer incarcerated, the statutory basis for his initial IFP status is no longer applicable. The court properly ordered the plaintiff to either pay the fees or re-apply under the general IFP statute, 28 U.S.C. § 1915(a). |
Dismissing Complaint Without Prejudice for Failure to Prosecute“Therefore, the Complaint in this action is dismissed without prejudice for failure to prosecute.” | agree with court The court applied Civil Local Rule 83.11(b), which allows dismissal if a pro se plaintiff fails to update their address within 60 days of returned mail. The record shows mail was returned on March 31, 2023, and the order was filed on May 31, 2023, satisfying the 60-day requirement. The plaintiff did not provide an updated address. |
The order itself: sound — The order is procedurally sound. It correctly distinguishes between the statutory regimes for prisoner and non-prisoner IFP status. It also correctly applies the local rule regarding address updates and failure to prosecute, citing the specific dates that satisfy the 60-day waiting period.
Opinion
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA
11 JOHN C. RODRIGUEZ, Case No. 3:22-cv-01437-DMS-KSC 12 Plaintiff, ORDER (1) VACATING ORAL 13 ARGUMENT, (2) GRANTING v. DEFENDANT’S MOTION TO 14 REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS; 15 T. VALENCIA, AND (3) DISMISSING COMPLAINT WITHOUT 16 Defendant. PREJUDICE FOR FAILURE TO PROSECUTE 17 18 This matter is presently before the Court on Defendant’s motion to revoke 19 Plaintiff’s in forma pauperis (“IFP) status (“Motion”). (ECF No. 17.) Plaintiff did 20 not file an opposition. This Motion is currently scheduled for hearing on June 2, 21 2023. The Court finds this matter suitable for decision without oral argument 22 pursuant to Civil Local Rule 7.1(d)(1). Accordin gly, the June 2, 2023 hearing is 23 vacated. 24 Plaintiff is no longer incarcerated and cannot proceed IFP under 28 U.S.C. 25 1915(b)(1). See Arrant v. Cortes, No. 22-cv-375, 2022 WL 3567007, at *2 (S.D. 26 Cal. Aug. 18, 2022) (stating a plaintiff’s interim release from custody renders 28 27 U.S.C. § 1915(b)’s fee collection provision unenforceable). This Court initially 28 granted Plaintiff IFP status pursuant to 28 U.S.C. § 1915(b). (See ECF No. 9 at 2- 1 | 4.) The authority under which this Court granted Plaintiff's initial IFP status is now 2 | unenforceable. As such, Plaintiffs’ IFP status is necessarily in question. 3 Accordingly, this Court revokes Plaintiff's IFP status and orders him to either 4 || (a) prepay the full $402 civil filing and administrative fee required by 28 U.S.C. § 5 | 1914(a); or (b) file a new application to proceed IFP that includes an affidavit 6 | documenting Plaintiff's current post-release income, assets, and expenses within 7 | thirty days. See 28 U.S.C. § 1915(a). Based on the foregoing, this Court GRANTS 8 || the Motion. 9 Furthermore, the Local Rules provide a party proceeding pro se “must keep the 10 | Court and opposing parties advised as to current address.” Civ. L. R. 83.11(b). “Tf 11 | mail directed to a pro se plaintiff by the Clerk at the plaintiff's last designated address 12 | is returned by the Post Office, and if such plaintiff fails to notify the Court and 13 || opposing parties within sixty (60) days thereafter of the plaintiffs current address, 14 | the Court may dismiss the action without prejudice for failure to prosecute. Jd. Here, 15 | mail directed to Plaintiff was returned as undeliverable by the Post Office on March 16 | 31,2023. It has been over sixty (60) days since mail directed to Plaintiff was returned 17 || as undeliverable by the Post Office. Plaintiffhas not provided the Court or Defendant 18 || with an updated address. Therefore, the Complaint in this action is dismissed without 19 | prejudice for failure to prosecute. 20 21 | Dated: May 31, 2023 2 Vos 44) 22 United States District Court 23 24 25 26 27 28 4 SAA NLADA □□□□□ □□□□