Jones v. Musk
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court reviewed a civil rights complaint filed by an incarcerated pro se plaintiff who had not paid the required filing fee or requested leave 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 motion to proceed in forma pauperis.
| 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.“Accordingly, the Court: (1) 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 because 28 U.S.C. § 1914(a) requires a filing fee, and 28 U.S.C. § 1915(a) provides the only exception for indigent litigants. Since the plaintiff did not pay the fee and did not request IFP status, the court lacked jurisdiction to proceed on the merits. Dismissing without prejudice allows the plaintiff to cure the defect. |
Granting of 45 days leave to re-open the case by paying the fee or filing a Motion to Proceed IFP.“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 This is a standard administrative accommodation for pro se litigants, particularly those who are incarcerated, to ensure they have a fair opportunity to comply with statutory requirements. The requirement for a certified trust account statement is consistent with 28 U.S.C. § 1915(a)(2) for prisoner litigants. |
The order itself: sound — The order correctly identifies the statutory requirements for filing fees and IFP status. It applies the relevant Ninth Circuit precedent accurately to the facts that the plaintiff neither paid the fee nor requested IFP status. The remedy of dismissal without prejudice with a specific deadline to cure is standard and appropriate.
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-1799-JLS (AHG) 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 ELON MUSK, TESLA CO., SPACE X FAILING TO MOVE TO PROCEED 16 INC., et al., IN FORMA PAUPERIS 17 Defendants. PURSUANT TO 28 U.S.C. § 1915(a) 18 19 (ECF No. 1) 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 23 42 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 11 28 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) paying 18 the entire $402 civil filing and administrative fee in full; or (b) completing and filing a 19 Motion to Proceed IFP which includes a certified copy of his trust account statement for 20 the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2). 21 In light of Jones’s incarceration, the Court further DIRECTS the Clerk of the Court 22 to provide him with its approved form “Motion and Declaration in Support of Motion to 23 Proceed In Forma Pauperis.” If Jones fails to either prepay the $402 civil filing fee or 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 ||complete and file the enclosed Motion to Proceed IFP with the Clerk within 45 days, 2 || however, his case will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a) 3 without further Order of the Court. 4 IT IS SO ORDERED. 5 Dated: September 29, 2023 . tt f te 6 on. Janis L. Sammartino 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
Cites, in this corpus
- Lonnie Williams, Jr. v. Daniel Paramo 13-56004 · 2015-01-07