Jones v. Monro Capital, Inc.
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court reviewed a civil rights complaint filed by a pro se prisoner who failed to pay the required filing fee or request in forma pauperis status. The court dismissed the action without prejudice and granted the plaintiff 45 days to pay the fee or file a motion to proceed in forma pauperis.
| What the court decided | The model |
|---|---|
Dismissal of civil action without prejudice“DISMISSES this civil action without prejudice based on Plaintiff’s failure to pay the $402 civil filing and administrative fee or 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, which is the standard remedy in this context. |
Grant of 45 days to reopen case by paying fee or filing IFP motion“GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed to re-open the case by: (a) paying the entire $402 civil filing and administrative fee in full; or (b) completing and filing 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 deficiency (failure to pay fees) is within the court's discretion and consistent with the purpose of the dismissal without prejudice. The requirement for a certified trust account statement aligns with 28 U.S.C. § 1915(a)(2) for prisoner IFP motions. |
The order itself: sound — The order correctly identifies the statutory requirements for commencing a civil action (payment of fees or IFP status). It accurately cites Ninth Circuit precedent regarding the necessity of IFP status for proceeding without full payment and the specific obligations of prisoner plaintiffs. The remedy (dismissal without prejudice with a deadline to cure) is standard and appropriate for this procedural failure. The reasoning is complete and directly addresses the motion/defect.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WAYNE E. JONES, Case No.: 3:23-cv-1794-CAB-DEB CDCR #BU-7712, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE vs. FOR FAILING TO PAY 14 FILING FEE REQUIRED 15 BY 28 U.S.C. § 1914(a) AND/OR MONRO CAPITAL, INC.; FAILING TO MOVE TO PROCEED 16 99 CENT STORES, LLC; MONRO- IN FORMA PAUPERIS MISSION SQUARE, LLC; JOHN DOE; 17 PURSUANT TO SAN DIEGO COUNTY SHERIFF 28 U.S.C. § 1915(a) 18 DEP’T; OCEANSIDE POLICE DEP’T, 19 Defendants. 20 21 Plaintiff Wayne E. Jones, proceeding pro se and currently incarcerated at Richard J. 22 Donovan Correctional Facility (RJD”) has filed a civil rights complaint pursuant to 42 23 U.S.C. § 1983. (ECF No. 1.) 24 FAILURE TO PAY FILING FEE OR REQUEST IFP STATUS 25 All parties instituting any civil action, suit or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 28 1 $402. See 28 U.S.C. § 1914(a). An action may proceed despite a failure to pay the entire 2 fee only if the plaintiff is granted leave to proceed in forma pauperis (“IFP”) pursuant to 3 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 4 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 5 prisoner, and even if he is granted leave to proceed IFP, he remains obligated to pay the 6 entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 7 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) 8 & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Jones has not paid the $402 in filing and administrative fees required to commence 10 a civil action in federal court, and has not requested leave to proceed IFP pursuant to 28 11 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. § 1914(a); 12 Andrews, 493 F.3d at 1051. 13 CONCLUSION 14 Accordingly, the Court: (1) DISMISSES this civil action without prejudice based 15 on Plaintiff’s failure to pay the $402 civil filing and administrative fee or submit a Motion 16 to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a); and (2) GRANTS Plaintiff 17 forty-five (45) days leave from the date this Order is filed to re-open the case by: (a) 18 paying the entire $402 civil filing and administrative fee in full; or (b) completing and 19 filing a Motion to Proceed IFP which includes a certified copy of his trust account 20 statement for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. 21 § 1915(a)(2). 22 In light of Jones’s incarceration, the Court further DIRECTS the Clerk of the Court 23 to provide him with its approved form “Motion and Declaration in Support of Motion to 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 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 28 1 Proceed In Forma Pauperis.” If Jones fails to either prepay the $402 civil filing fee or 2 ||complete and file the enclosed Motion to Proceed IFP with the Clerk within 45 days, 3 || however, his case will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a) 4 || and without further Order of the Court. 5 IT IS SO ORDERED. 6 7 ||Dated: October 6, 2023 € ZL 8 Hon. Cathy Ann Bencivengo ? United States District Judge 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