Freeman v. Deburg
- Proceeding
- district
- Area
- civil
- Panel
- Ruth Bermudez Montenegro (author)
Analysis
Plaintiff Brian Lee Freeman filed a civil complaint against various law enforcement entities and officers but 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 plaintiff leave to reopen the case by paying the fee or filing a proper IFP motion by February 9, 2024.
| 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“Accordingly, the Court DISMISSES this civil action without prejudice based on Plaintiff’s failure to pay the $405 civil filing and administrative fee or submit a motion to proceed IFP.” | agree with court The dismissal is procedurally correct under 28 U.S.C. § 1914 and § 1915. The order recites that the plaintiff neither paid the fee nor filed a supported IFP motion. The court correctly cites *Andrews v. Cervantes* and *Escobedo v. Applebees* for the proposition that an action cannot proceed without fee payment or IFP status. The dismissal is without prejudice, allowing the plaintiff to cure the defect, which is the standard remedy in this context. |
Grant of leave to re-open the case by paying fee or filing IFP motion“Plaintiff is GRANTED leave to re-open the case by: (a) paying the entire $405 civil filing and administrative fee in full; or (b) completing and filing a motion to proceed IFP with an affidavit that includes a statement of Plaintiff’s assets as required by 28 U.S.C. § 1915(a) and the Southern District of California Civil Local Rule 3.2(b).” | agree with court Granting leave to cure a procedural deficiency in a dismissal without prejudice is consistent with federal practice and ensures access to the courts while enforcing fee requirements. The deadline set (February 9, 2024) provides a reasonable period for compliance. |
The order itself: sound — The order is procedurally sound. It correctly identifies the legal requirement for fee payment or IFP status, cites the relevant statutes and Ninth Circuit precedent, and applies them to the undisputed fact that the plaintiff did not pay the fee or file a proper IFP motion. The dismissal without prejudice and the grant of leave to cure are appropriate remedies. The footnote regarding venue is an observation and does not affect the ruling on the fee issue.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN LEE FREEMAN, Case No.: 3:23-cv-02371-RBM-DEB 12 Plaintiff, ORDER DISMISSING CIVIL 13 vs. ACTION WITHOUT PREJUDICE FOR FAILING TO PAY 14 FILING FEE OR MOVE TO J. DEBUG, et al. 15 PROCEED IN FORMA PAUPERIS Defendants. 16 17 18 19 Plaintiff Brian Lee Freeman has filed a Complaint against the City of Hisperia, 20 Hisperia Police Department, San Bernadino County, San Bernadino County Sheriff’s 21 Department, and eight deputies in the San Bernadino County Sheriff’s Department.1 (Doc. 22 1.) 23 24 25 26 1 While the Court is dismissing the case for failing to pay the $ 405 filing fee, the Court also notes that venue seems to be improper in this District. Plaintiff’s claims appear to be 27 based on events that occurred in San Bernadino County. San Bernadino County is in the 28 Central District of California, Eastern Division. 28 U.S.C § 84(c)(1). 1 I. FAILURE TO PAY FILING FEE OR MOVE TO PROCEED IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $405. See 28 U.S.C. § 1914.2 An action may proceed despite a failure to pay the entire 5 fee only if the plaintiff is granted leave to proceed in forma pauperis (“IFP”) pursuant to 6 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 7 Section 1915 requires all persons seeking to proceed without full prepayment of fees to 8 submit an affidavit that includes a statement of all assets possessed and which demonstrates 9 an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). 10 Plaintiff has not paid the $405 in filing and administrative fees required to commence 11 a civil action in federal court. Nor has Plaintiff submitted a properly supported IFP motion. 12 Therefore, this case cannot proceed. 13 II. CONCLUSION 14 Accordingly, the Court DISMISSES this civil action without prejudice based on 15 Plaintiff’s failure to pay the $405 civil filing and administrative fee or submit a motion to 16 proceed IFP. 17 Plaintiff is GRANTED leave to re-open the case by: (a) paying the entire $405 civil 18 filing and administrative fee in full; or (b) completing and filing a motion to proceed IFP 19 with an affidavit that includes a statement of Plaintiff’s assets as required by 28 U.S.C. 20 § 1915(a) and the Southern District of California Civil Local Rule 3.2(b). 21 /// 22 /// 23 /// 24 25 26 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 27 Misc. Fee Schedule, ¶ 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does 28 not apply to persons granted leave to proceed IFP. Id. 1 If Plaintiff fails to either pay the $405 civil filing fee or file a motion to proceed IFP 2 ||by February 9, 2024, this case will remain dismissed without prejudice without further 3 || Order of the Court. 4 IT IS SO ORDERED. 5 Dated: January 8, 2024 Fe Le ; ? L é > 6 HON. RUTH BERMUDEZ MONTENEGRO 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 a.N70 NNIAT DDAA