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 §
WILLIAM Q. HAYES UNITED STATES DISTRICT COURT.
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 Loma Linda
University Medical Center, in Loma Linda, California, for
discriminating against him and failing to accommodate his
“Type II bi-polar disorder” while he was employed
as an orthopedic surgeon there almost twenty years ago, in
July 1998. (ECF No. 1 at 1-3).
Failure to Pay Filing Fee or Request In Forma Pauperis
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, as Plaintiff is a prisoner in this case, 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.
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). Section 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);
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).
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
he has filed his case in the wrong district. Plaintiff is
currently incarcerated in Indiana, and he seeks to sue the
Loma Linda University Medical based on incidents that took
place there. (ECF No. 1 at 1).
City of Loma Linda is located in the County of San
Bernardino, California, and it is within the Central District
of California, Eastern Division. See 28 U.S.C.
§ 84(c)(1). See also 28 U.S.C. § 84(d)
(“The Southern District [of California] comprises the
counties of Imperial and San Diego.”); 28 U.S.C. §
1391(b); Costlow, 790 F.2d at 1488. Because no claim
is alleged to have arisen in, and no Defendant is alleged to
reside in either San Diego or Imperial County, the Court
finds dismissal of the action without prejudice based on lack
of proper venue is also appropriate. See 28 U.S.C.
. 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).