Cazares v. City of El Centro

5 □ 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA |} JON CAZARES, Case No.: 3:20-cv-01571-BEN-RBM 12 Plainuft, | ORDER GRANTING PLAINTIFF'S || V. APPLICATION TO PROCEED IN | crrvoF Et. CENTRO, eat, DISTRICT COURT WITHOUT 15 Defendants.

17 [Doc. 2] 19 I. INTRODUCTION 20 On August 13, 2020, Plaintiff Jon Cazares (“Plaintiff’) filed a complaint against 21 Defendants City of El Centro (“El Centro”), El Centro Police Department Chief of Police 22 Brian Johnson (“Johnson”), and Does 1 through 10 (collectively “Defendants”). (Doc. 1.)

23 Plaintiff alleges Defendants violated his rights under the Uniformed Services Employment 24 Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301, et seq., and discriminated 25 retaliated against Plaintiff in violation of California’s Fair Employment and Housing || Act (“FEHA”), California Government Code § 12940. (Doc. 1 at 2.) Plaintiff did not pay |\the required filing fee and instead filed an Application to Proceed Without Prepayment 28 (“the Application”). (Doc. 2.)

1 Having reviewed the underlying complaint and Application, the undersigned || GRANTS Plaintiff's Application.

3 fl. DISCUSSION 4 All parties instituting a civil action in a district court of the United States, except an application for a writ of habeas corpus, must pay a filing fee. 28 U.S.C. § 1914(a).

6 But litigants proceeding under USERRA are explicitly exempt from being charged 7 or court costs. 38 U.S.C. § 4323(h)(1) (stating “[n]o fees or court costs may be charged ||or taxed against any person claiming rights under this chapter.”) Congress enacted || USERRA, in part, to “prohibit discrimination against persons because of their service in || the uniformed services.” 38 U.S.C. § 4301(a)(3). The statute has been construed liberally 11 favor of uniformed service members seeking its protections. See Davis v. Advocate || Health Ctr. Patient Care Exp., 523 F.3d 681, 683-84 (7th Cir. 2008). Courts have |/interpreted the language of 38 U.S.C. § 4323(h)(1) to include normal litigation costs such |\ as filing fees. See Davis, 523 F.3d at 684-85; Kowalski v. Hospice by the Sea, Ltd., 15-cv- ||01954-JAH-DHB, Doc. 3 (S.D. Cal. Sept. 10, 2015); Vonville v. New Century Air Serv., ||Jnc., 16-cv-02621-JAR-TJJ, 2016 WL 4919804, *1 (D. Kan. Sept. 15, 2016).

17 Here, Plaintiff has sufficiently demonstrated entitlement to proceed without || prepayment of the filing fee under 38 U.S.C. § 4323(h)(1). Plaintiff's first cause of action 19 alleges a cause of action under USERRA. (Doc. 1 at □□ 33-43; Doc. 2 at 2.) Plaintiff 20 asserts he is entitled to the protections of USERRA because he was a member of the || uniformed service with the United States Marine Corps from 2012 to 2019. (Doc. 1 at □ 22 Doc. 2 at 2.) Plaintiff alleges that Defendants violated USERRA’s anti-retaliation and || anti-discrimination provisions by terminating Plaintiff during his probationary period due 24 “his military/veteran status... (Doc. 1 at J 40.)

25 In light of the plain language of 38 U.S.C. § 4323(h)(1) and caselaw, the undersigned || finds that Plaintiff is exempt from prepaying the filling fee.

1 UI. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that Plaintiff's Application is ||GRANTED. The Court hereby waives the filing fee and Plaintiff may proceed with this || case without prepayment of the $400 filing fee pursuant to 38 U.S.C. § 4323(h)(1).

5 IT ISSO ORDERED.

6 Dated: September 24, 2020 8 IN. RUTH BE DEZ MONTENEGRO 9 UNITED STATES MAGISTRATE JUDGE