Armstrong v. County of San Diego
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court reviewed a pro se civil rights complaint filed by a prisoner who failed to pay the required filing fee or submit 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 a proper IFP motion.
| What the court decided | The model |
|---|---|
Dismissal of civil action without prejudice for failure to pay filing fee or move to proceed in forma pauperis“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 be maintained without the payment of the filing fee unless the plaintiff is granted leave to proceed in forma pauperis under 28 U.S.C. § 1915. The order recites that the plaintiff neither paid the fee nor filed a supported IFP motion. Dismissing without prejudice allows the plaintiff to cure the defect, which is the standard procedural remedy in this context. |
Grant of 45 days leave 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” | agree with court Granting a specific period to cure a procedural deficiency is within the court's discretion and is consistent with local rules and federal practice for pro se litigants. |
The order itself: sound — The order correctly identifies the statutory requirements for filing a civil action and the alternative of proceeding in forma pauperis. It cites appropriate Ninth Circuit precedent regarding the obligations of prisoner-litigants. The procedural remedy of dismissal without prejudice with a deadline to cure is standard and appropriate given the plaintiff's failure to satisfy the threshold jurisdictional requirement of paying the fee or obtaining IFP status.
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ARCHIE TYRELL ARMSTRONG, Case No.: 3:23-cv-01684-CAB-DDL Booking No. 23705591, 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 UNKNOWN DEFENDANTS, FAILING TO MOVE TO PROCEED 15 Defendants. IN FORMA PAUPERIS 16 PURSUANT TO 28 U.S.C. § 1915(a) 17 18 19 Plaintiff Archie Tyrell Armstrong (“Plaintiff” or “Armstrong”), proceeding pro se 20 and currently housed at the George Bailey Detention Facility in San Diego, California, has 21 filed this civil rights action pursuant to 42 U.S.C. § 1983. See ECF No. 1, “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 IFP pursuant to 28 U.S.C. 2 Section 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). However, if the Plaintiff is a 4 prisoner, and even if he is granted leave to commence his suit IFP, he remains obligated to 5 pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th 6 Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. 7 § 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, nor has he submitted a properly supported Motion to Proceed 10 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 11 § 1914(a); Andrews, 493 F.3d at 1051. 12 II. Conclusion and Order 13 Accordingly, the Court: 14 (1) DISMISSES this civil action sua sponte without prejudice based on 15 Plaintiff’s failure to pay the $402 civil filing and administrative fee or to submit a Motion 16 to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and 17 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 18 to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 19 file a Motion to Proceed IFP which includes a certified copy of his trust account statement 20 for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); 21 S.D. Cal. Civ. L.R. 3.2(b). 22 The Clerk of the Court is DIRECTED to provide Plaintiff with this Court’s 23 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 24 Pauperis.” But if Plaintiff fails to either prepay the $402 civil filing fee or complete and 25 submit the enclosed Motion to Proceed IFP within 45 days, this action will be dismissed 26 27 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does 28 1 || without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirements. 2 IT IS SO ORDERED. 3 Dated: September 13, 2023 € ZL 4 Hon. Cathy Ann Bencivengo 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 oo
Cites, in this corpus
- Lonnie Williams, Jr. v. Daniel Paramo 13-56004 · 2015-01-07