Tonnemacher v. California, State of

• Court: District Court, E.D. Washington
• Decided: October 31, 2019
• Docket: 1:19-cv-03209
• Status: Unknown

Opinion

1 2

3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 DANIEL TONNEMACHER and KATHLEEN TONNEMACHER, NO. 1:19-CV-3209-TOR 8 Plaintiffs, ORDER OF DISMISSAL 9 WITHOUT PREJUDICE v. 10 STATE OF CALIFORNIA; STATE OF 11 IDAHO; STATE OF WASHINGTON; COUNTY OF KITTITAS, WASHINGTON; 12 COUNTY OF BONNER, IDAHO; COUNTY OF PLACER, CALIFORNIA; US SOCIAL 13 SECURITY; APPLE HEALTH; WASHINGTON SUPERIOR COURT, 14 ELLENSBURG; PRESTIGE-POST ACUTE CARE; PRUDENTIAL INSURANCE; and 15 DOES ONE THRU 20, US CITIZENS AS INDIVIDUALS, 16 Defendants. 17

18 BEFORE THE COURT is Plaintiffs’ Response to Clerk’s Notice & Request 19 for Hearing or Decision (ECF No. 3). The Court has reviewed the record and files 20 1 herein, and is fully informed. For the reasons discussed below, this action is 2 dismissed without prejudice.

3 BACKGROUND 4 On September 9, 2019, Plaintiffs Daniel Tonnemacher and Kathleen 5 Tonnemacher, proceeding pro se, filed what is construed as a civil complaint. ECF

6 No. 1. No accompanying filing fee or in forma pauperis application was filed. On 7 September 9, 2019, the Clerk of Court sent Plaintiffs a Notice of Deficient Filing 8 explaining that the 9 failure to pay the prescribed Civil Complaint filing fee, OR in lieu of payment of the filing fee, to file the appropriate Application to 10 Proceed In Forma Pauperis (IFP) by 9/23/2019, may subject this case to dismissal by the Court without further notice or opportunity for 11 hearing.

12 ECF No. 2. 13 On September 24, 2019, Plaintiffs filed a Response to Clerk’s Notice, 14 without signature. ECF No. 3. Plaintiffs responded, inter alia, “Tonnemachers 15 will not pay any money for access. . . Tonnemachers have already [f]iled IFP 16 papers.” Id. at 1. 17 No IFP papers have been filed in this proceeding. The Tonnemachers filed 18 for and were granted in forma pauperis status in 2017 in case number 1:17-CV- 19 3053-TOR. That case was eventually dismissed and IFP status revoked for failure

20 to state a claim. The Court allowed the Tonnemachers to amend the complaint, 1 extended the time within which to do so, but no amendment to the complaint was 2 ever filed. The Tonnemachers appealed that decision to the Ninth Circuit. The

3 Ninth Circuit denied their motion to proceed in forma pauperis and dismissed the 4 appeal as frivolous. 5 Additionally, the Tonnemachers filed an in forma pauperis application in

6 case number 1:18-CV-3002-TOR. The application was not properly completed 7 and the Tonnemachers were granted additional time within which to submit a 8 properly completed application. A second application was submitted, but it too 9 was not completed properly. Consequently, in forma pauperis status was not

10 granted and the file was closed. 11 Parties filing actions in the United States District Court are required to pay 12 filing fees. 28 U.S.C. § 1914(a). An action may proceed without the immediate

13 payment of a filing fee only upon granting of in forma pauperis status. See 28 14 U.S.C. § 1915. Failure to pay the statutory filing fee will result in dismissal of 15 these actions without prejudice. See Olivares v. Marshall, 59 F.3d 109, 112 (9th 16 Cir. 1995) (district court has authority to dismiss without prejudice prisoner

17 complaint for failure to pay partial filing fee); In re Perroton, 958 F.2d 889, 890 18 (9th Cir. 1992) (affirming dismissal of appeal of pro se litigant for failure to pay 19 required filing fees).

20 l Here, Plaintiffs affirmatively refuse to pay the filing fee required to commence a civil action; and have not submitted a properly completed Application to Proceed In Forma Pauperis. Therefore, the case must be dismissed pursuant to 28 U.S.C. § 1914(a), without prejudice. 5|| ACCORDINGLY, IT IS HEREBY ORDERED: 6 This action is DISMISSED without prejudice for failing to pay the filing fee or file a properly completed Application to Proceed In Forma Pauperis pursuant to 8|| 28 U.S.C. §§ 1914(a) and 1915(a). 9 The District Court Executive is directed to enter this Order, enter judgment accordingly, furnish copies to Plaintiffs, and CLOSE the file. 11 DATED October 31, 2019.

13 os &S THOMAS Ck ae Chief United States District Judge 14 15 16 17 18 19 20