Funtanilla v. Tristan

234 F. App'x 505

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 8, 2007
• Docket: No. 05-17096
• Status: Published

Opinion

MEMORANDUM

**

Gregorio C. Funtanilla (“Funtanilla”), a California state prisoner, filed a civil rights action under 42 U.S.C. § 1983, alleging that prison officers violated his First, Eighth, and Fourteenth Amendment rights. He also requested leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. The magistrate judge initially granted Funtanilla IFP status but, in response to the second of the defendants’ two motions for involuntary dismissal, the magistrate judge later recommended revoking Funtanilla’s IFP status and dismissing the case without prejudice. The district court adopted these recommendations, notwithstanding the fact that Funtanilla’s fee was paid prior to the district court’s issuance of the final dismissal order.

In dismissing the proceeding despite this payment, the district court relied on Dupree v. Palmer, 284 F.3d 1234 (11th Cir.2002), an Eleventh Circuit case in which the prisoner had paid the fee after dismissal. Here, in contrast, Funtanilla paid the fee prior to dismissal. Once Funtanilla’s fee was paid, the issue of his IFP status became moot. See Lipscomb v. Madigan, 221 F.2d 798, 798 (9th Cir.1955). Because Funtanilla’s filing fee was paid prior to dismissal, the dismissal was in error.

REVERSED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.