Canales v. Guzman
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
The court considered a pro se civil action filed by a prisoner who failed to pay the required filing fee or file 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 the required motion.
| What the court decided | The model |
|---|---|
Dismissal of the civil action without prejudice for failure to pay the filing fee or move to proceed in forma pauperis“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 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 under 28 U.S.C. § 1915(a). The order recites that the plaintiff did neither. Dismissing without prejudice allows the plaintiff to cure the defect by paying the fee or filing the IFP motion within the allotted time, which is the standard procedure in this circuit. |
Granting of 45 days leave to pay the filing fee or file a Motion to Proceed In Forma Pauperis“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 Granting a specific period to cure a procedural deficiency before final dismissal is within the court's discretion and consistent with local rules and federal practice for pro se litigants. |
The order itself: sound — The order correctly identifies the statutory requirements for commencing a civil action (28 U.S.C. § 1914(a)) and the alternative path for indigent plaintiffs (28 U.S.C. § 1915(a)). It accurately cites Ninth Circuit precedent confirming that the fee must be paid or IFP status granted for the case to proceed. The remedy of dismissal without prejudice with a deadline to cure is appropriate and standard.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:23-cv-1059-GPC-MSB ANGEL CHRISTOPHER CANALES, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE v. FOR FAILING TO PAY 14 FILING FEE REQUIRED GUZMAN, Warden, GOVERNMENT 15 BY 28 U.S.C. § 1914(a) AND/OR CLAIMS OFFICIAL, MAIL ROOM FAILING TO MOVE TO PROCEED 16 SERGEANT, IN FORMA PAUPERIS PURSUANT 17 Defendants. TO 28 U.S.C. § 1915(a)
18 19 20 Angel Christopher Canales (“Plaintiff”), currently incarcerated at Centinela State 21 Prison located in Imperial, California, and proceeding pro se, has filed a civil action 22 pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff, however, has not prepaid the $402 civil 23 filing fee required by 28 U.S.C. § 1914(a), however, and has not filed a Motion to Proceed 24 In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 25 I. Failure to Pay Filing Fee or Request IFP Status 26 All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $402. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a prisoner, and even 5 if he is granted leave to commence his suit IFP, he remains obligated to pay the entire filing 6 fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 7 regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); 8 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Plaintiff has not prepaid the $402 in filing and administrative fees required to 10 commence this civil action, nor has he submitted a properly supported Motion to Proceed 11 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 12 § 1914(a); Andrews, 493 F.3d at 1051. 13 II. Conclusion and Order 14 For the reasons set forth above, the Court hereby: 15 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 16 $402 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 17 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. CivLR 3.2(b). If Plaintiff fails to either prepay the $402 civil filing fee or 23 complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 26 fee of $52. 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 27 not apply to persons granted leave to proceed IFP. Id. 1 |/remain dismissed without prejudice based on Plaintiff's failure to satisfy 28 U.S.C. 2 ||§ 1914(a)’s fee requirements and without further Order of the Court. 3 (3) DIRECTS the Clerk of the Court to provide Plaintiff with this Court’s 4 ||approved form “Motion and Declaration in Support of Motion to Proceed In Forma 5 || Pauperis.” 6 IT IS SO ORDERED. 7 ||Dated: June 13, 2023 (2. sale (0 8 Hon. Gonzalo P. Curtel 9 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