Finnegan et al v. Amtrak et al

Filing 4

Order Dismissing Action Without Prejudice. Signed by Judge Cynthia Bashant on 6/4/21.(All non-registered users served via U.S. Mail Service)(jmo)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SEAN MATTHEW FINNEGAN,
Plaintiff,
v.

Case No. 21-cv-00782-BAS-DEB
ORDER DISMISSING ACTION
WITHOUT PREJUDICE

AMTRAK; AMTRAK POLICE
DEPARTMENT,
Defendants.

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On April 20, 2021, Plaintiff Sean Matthew Finnegan, proceeding pro se, commenced

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this action against Amtrak and the Amtrak Police Department and sought leave to proceed

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in forma pauperis (“IFP”). (ECF Nos. 1, 2.) The Court issued an order denying the request,

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noting that Plaintiff had submitted the incorrect IFP form and instructing him to complete

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the long form application—a copy of which was mailed to him by the Clerk’s Office—and

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file it with the Court by May 14, 2021. (ECF No. 3.) The Court cautioned Plaintiff that

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failure to timely file the correct IFP form would result in dismissal of his action without

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prejudice. As of the date of this Order, Plaintiff has not filed a corrected IFP application,

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paid the filing fee for this case, or requested an extension of time to do so.

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“Under 28 U.S.C. § 1915, a district court may authorize the commencement of a

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civil action IFP if it is satisfied that the plaintiff cannot pay the filing fees necessary to

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pursue the action.” La Douer v. U.C.S.F., No. 15-cv-02214-MEJ, 2015 WL 4323665, at

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*2 (N.D. Cal. July 15, 2015) (citing 28 U.S.C. § 1915(a)(1)). To obtain IFP status, an

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applicant must “submit[ ] an affidavit that includes a statement of all assets” showing that
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the applicant “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1).

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An action cannot proceed where a plaintiff fails to prepay the entire fee only and is not

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granted leave to proceed IFP. See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir.

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2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

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Thus, because Plaintiff has not filed a corrected IFP application as required by Court

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order, and has otherwise failed to pay the filing fee, this action must be dismissed. See

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Harris v. Madden, No. 1:19-CV-01216-DAD-SKO (PC), 2020 WL 1139464, at *1 (E.D.

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Cal. Mar. 9, 2020) (dismissing action without prejudice after IFP application was denied

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and Plaintiff failed to pay required filing fee pursuant to court order); see also Hamrick v.

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Fukino, No. CV 08–00544 ACK–KSC, 2009 WL 1404535, at *2 (D. Hawai‘i May 20,

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2009) (citing In re Perroton, 958 F.2d 889 (9th Cir.1992) and Olivares v. Marshall, 59

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F.3d 109, 112 (9th Cir.1995)) (finding plaintiff’s failure to pay the filing fee or file an

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application to proceed in forma pauperis were sufficient grounds to recommend dismissal

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of the action).

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Furthermore, weighing the relevant factors, see Ferdik v. Bonzelet, 963 F.2d 1258,

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1260–61 (9th Cir. 1992), the Court finds that its interest in managing its docket and the

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public interest in expeditious resolution of this litigation outweigh the policy favoring

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disposition of cases on the merits. Defendant also has not been served and will therefore

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not be prejudiced by dismissal, and there are no less drastic alternatives available at this

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time. Thus, having the Court finds that Plaintiff’s failure to timely file a corrected IFP

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application in accordance with the Court’s order warrants dismissal. Accordingly, the

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Court DISMISSES WITHOUT PREJUDICE this action. The Clerk is instructed to

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close this case.

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IT IS SO ORDERED.

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DATED: June 4, 2021

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