United States District Court, S.D. California
ORDER DISMISSING CIVIL ACTION: 1) FOR FAILING TO PAY
FILING FEE REQUIRED BY 28 U.S.C. § 1914(A) AND/OR
FAILING TO MOVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28
U.S.C. § 1915(A) AND 2) FOR LACK OF PROPER VENUE
PURSUANT TO 28 U.S.C. § 1391(B) AND §
Cynthia Bashant United States District Judge.
a prisoner currently incarcerated at Westville Correctional
Facility in Westville, Indiana, and proceeding pro se, has
filed a civil rights complaint pursuant to 42 U.S.C. §
1983. (ECF No. 1.) Plaintiff seeks to sue the Los Angeles
Police Department, on behalf of the estate of his late
brother, for using excessive force while effecting his
brother's arrest in 1994. (Id. at 1-2.)
Failure to Pay Filing Fee or Request IFP Status
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 he is granted leave to proceed IFP
pursuant to 28 U.S.C. § 1915(a). See Andrews v.
Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.
1999). However, if the plaintiff is a prisoner, as Plaintiff
is here, even if he is granted leave to commence his suit
IFP, he will remain obligated to pay the entire filing fee in
“increments, ” see Williams v. Paramo,
775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether
his case is ultimately dismissed. See 28 U.S.C.
§ 1915(b)(1) & (2); Taylor v. Delatoore,
281 F.3d 844, 847 (9th Cir. 2002).
has not prepaid the $400 in filing and administrative fees
required to commence this civil action and he has not filed a
Motion to Proceed IFP which complies with 28 U.S.C. §
1915(a)(1) and (2). Therefore, his case cannot yet proceed.
See 28 U.S.C. § 1914(a); Andrews, 493
F.3d at 1051.
the Court would normally grant Plaintiff an opportunity to
either pay the full filing fee or file a Motion to Proceed
IFP, an initial review of his Complaint further reveals that,
among other pleading deficiencies, he has filed his case in
the wrong district. Venue may be raised by a court sua sponte
where the defendant has not yet filed a responsive pleading
and the time for doing so has not run. Costlow v.
Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986).
1391(b) of Title 28 of the U.S. Code provides, in pertinent
part, that a “civil action may be brought in - (1) a
judicial district in which any defendant resides, if all
defendants are residents of the State in which the district
is located; [or] (2) a judicial district in which a
substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is
the subject of the action is situated[.]” 28 U.S.C.
§ 1391(b); see also Costlow, 790 F.2d at 1488;
Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d
834, 842 (9th Cir. 1986). “The district court of a
district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the
interests of justice, transfer such case to any district or
division in which it could have been brought.” 28
U.S.C. § 1406(a).
is currently incarcerated in Indiana, and he seeks to sue the
Los Angeles Police Department based on an incident occurring
in a Los Angeles hair salon in 1994. (ECF No. 1 at 1.) The
City of Los Angeles is located in the County of Los Angeles,
California, and it is within the Central District of
California, Western Division. 28 U.S.C. § 84(c)(2).
Thus, no claim is alleged to have arisen in, and no Defendant
is alleged to reside in, this district-the Southern District
of California. See 28 U.S.C. § 84(d).
Consequently, the Court finds dismissal of the action without
prejudice based on a lack of proper venue is also
appropriate. See 28 U.S.C. § 1406(a).
. Conclusion and Order
the Court DISMISSES this action sua sponte without prejudice
based on Plaintiffs failure to pay the $400 filing fee
required by 28 U.S.C. § 1914(a), his failure to file a
Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a),
and for lack of proper venue pursuant to 28 U.S.C. §
1391(b) and § 1406(a).