Konrath v. Los Angeles Police Dept., The

Filing 3

ORDER DISMISSING CASE. Court dismisses this action sua sponte without prejudice based on Plaintiff's failure to pay the $400 filing fee required by 28 USC 1914(a), failure to file a Motion for IFP pursuant to 28 USC 1915(a), and for lack of proper venue pursuant to 28 USC 1391(b) and 1406(a). Signed by Judge Cynthia Bashant on 4/19/2017 (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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GREGORY KONRATH,
Inmate #254068,

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ORDER DISMISSING CIVIL
ACTION:

Plaintiff,

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Case No.: 3:17-cv-00345-BAS-PCL

vs.
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)

LOS ANGELES POLICE DEPT.,
Defendant.

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AND

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2) FOR LACK OF PROPER VENUE
PURSUANT TO 28 U.S.C. § 1391(b)
AND § 1406(a)

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Plaintiff, a prisoner currently incarcerated at Westville Correctional Facility in

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Westville, Indiana, and proceeding pro se, has filed a civil rights complaint pursuant to 42

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U.S.C. § 1983. (ECF No. 1.) Plaintiff seeks to sue the Los Angeles Police Department, on

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behalf of the estate of his late brother, for using excessive force while effecting his brother’s

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arrest in 1994. (Id. at 1-2.)
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I.

Failure to Pay Filing Fee or Request IFP Status

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All parties instituting any civil action, suit, or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a prisoner, as

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Plaintiff is here, even if he is granted leave to commence his suit IFP, he will remain

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obligated to pay the entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d

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1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28

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U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Plaintiff has not prepaid the $400 in filing and administrative fees required to

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commence this civil action and he has not filed a Motion to Proceed IFP which complies

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with 28 U.S.C. § 1915(a)(1) and (2). Therefore, his case cannot yet proceed. See 28 U.S.C.

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§ 1914(a); Andrews, 493 F.3d at 1051.

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II.

Venue

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While the Court would normally grant Plaintiff an opportunity to either pay the full

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filing fee or file a Motion to Proceed IFP, an initial review of his Complaint further reveals

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that, among other pleading deficiencies, he has filed his case in the wrong district. Venue

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may be raised by a court sua sponte where the defendant has not yet filed a responsive

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pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th

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Cir. 1986).

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Section 1391(b) of Title 28 of the U.S. Code provides, in pertinent part, that a “civil

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action may be brought in – (1) a judicial district in which any defendant resides, if all

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In addition to the $350 statutory fee, civil litigants 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, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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defendants are residents of the State in which the district is located; [or] (2) a judicial

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district in which a substantial part of the events or omissions giving rise to the claim

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occurred, or a substantial part of property that is the subject of the action is situated[.]” 28

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U.S.C. § 1391(b); see also Costlow, 790 F.2d at 1488; Decker Coal Co. v. Commonwealth

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Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). “The district court of a district in which is

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filed a case laying venue in the wrong division or district shall dismiss, or if it be in the

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interests of justice, transfer such case to any district or division in which it could have been

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brought.” 28 U.S.C. § 1406(a).

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Plaintiff is currently incarcerated in Indiana, and he seeks to sue the Los Angeles

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Police Department based on an incident occurring in a Los Angeles hair salon in 1994.

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(ECF No. 1 at 1.) The City of Los Angeles is located in the County of Los Angeles,

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California, and it is within the Central District of California, Western Division. 28 U.S.C.

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§ 84(c)(2). Thus, no claim is alleged to have arisen in, and no Defendant is alleged to reside

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in, this district—the Southern District of California. See 28 U.S.C. § 84(d). Consequently,

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the Court finds dismissal of the action without prejudice based on a lack of proper venue

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is also appropriate. See 28 U.S.C. § 1406(a).

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III.

Conclusion and Order

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Accordingly, the Court DISMISSES this action sua sponte without prejudice based

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on Plaintiff’s failure to pay the $400 filing fee required by 28 U.S.C. § 1914(a), his failure

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to file a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), and for lack of proper

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venue pursuant to 28 U.S.C. § 1391(b) and § 1406(a).

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IT IS SO ORDERED.

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Dated: April 19, 2017
Hon. Cynthia Bashant
United States District Judge

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