Opinion
CASE NO. 14cv365-MMA (PCL)
02-27-2014
NORBERTO MIRANDA-VALDEZ, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
ORDER DISMISSING CIVIL
ACTION WITHOUT
PREJUDICE FOR FAILING TO
PAY FILING FEE REQUIRED
BY 28 U.S.C. § 1914(a) AND
FAILING TO MOVE TO
PROCEED IN FORMA
PAUPERIS PURSUANT TO 28
U.S.C. § 1915(a)
[Doc. No. 1]
On February 14, 2014, pro se inmate Norberto Miranda-Valdez ("Plaintiff") filed a Motion for Return of Property Pursuant to Rule 41(g) ("Motion for Return of Property"). Specifically, Plaintiff seeks the return of a 1994 Nissan Sentra, a personal wallet, jewelry, keys, and two cellular phones. The Court has construed the Motion for Return of Property as a civil complaint. All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff requests and is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Here, Plaintiff has not prepaid the $400 filing fee required to commence a civil action, nor has he submitted a Motion to Proceed in forma pauperis. Therefore, the case must be dismissed pursuant to 28 U.S.C. § 1914(a). Accordingly, the Court hereby:
Plaintiff initiated this action using the standard complaint form used in 42 U.S.C. § 1983 cases. However, the substance of Plaintiff's pleading demonstrates that he in fact seeks return of property pursuant to Rule 41(g), and does not intend to state a claim under § 1983. Because Plaintiff's underlying criminal case is no longer pending, the Motion for Return of Property is construed as a civil complaint seeking equitable relief, and subject to the Federal Rules of Civil Procedure. See United States v. Ritchie, 342 F.3d 903, 906 (9th Cir. 2003) ("If a Rule 41[(g)] motion is filed when no criminal proceeding is pending, the motion is treated as a civil complaint seeking equitable relief."); United States v. Ibrahim, 522 F.3d 1003, 1007 (9th Cir. 2008) (finding that when no criminal case is pending, a Rule 41(g) motion is governed by the Federal Rules of Civil Procedure).
In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule) (eff. May 1, 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id.
(1) DISMISSES this action sua sponte without prejudice for failing to pay the $400 filing fee or file a Motion to Proceed In Forma Pauperis pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and
(2) GRANTS Plaintiff forty five (45) days leave from the date this Order is filed to: (a) prepay the entire $400 civil filing fee in full; or (b) complete and file 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. See 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ.L.R. 3.2(b).
Plaintiff is cautioned that if he chooses to proceed further with this action either by paying the full civil filing fee required by 28 U.S.C. § 1914(a), or moving to proceed in forma pauperis, his complaint will be screened and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(b). See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).
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IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with this Court's approved form "Motion and Declaration in Support of Motion to Proceed In Forma Pauperis." If Plaintiff fails to either prepay the $400 civil filing fee or complete and submit the enclosed Motion to Proceed In Forma Pauperis within the specified amount of time, this action shall remain dismissed without prejudice and without further Order of the Court.
IT IS SO ORDERED.
__________
Hon. Michael M. Anello
United States District Judge