Holmes v. San Quentin State Prison

Filing 5

ORDER OF DISMISSAL; DENYING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Maxine M. Chesney on October 21, 2008. (mmcsec, COURT STAFF) (Filed on 10/21/2008)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) ) Plaintiff, ) ) v. ) ) SAN QUENTIN STATE PRISON, ) ) Defendant. ____________________________________ ) VICTOR DWAYNE HOLMES, No. C 08-3423 MMC (PR) ORDER OF DISMISSAL; DENYING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket No. 2)

On July 16, 2008, plaintiff, a California prisoner incarcerated at San Quentin State Prison and proceeding pro se, filed the above-titled civil rights action pursuant to 42 U.S.C. § 1983. Together with his complaint, plaintiff filed an incomplete application to proceed in forma pauperis ("IFP"). That same date, the Court notified plaintiff in writing that the action was deficient due to plaintiff's failure to pay the requisite filing fee or, instead, to submit a completed court-approved IFP application. Specifically, in said notice, plaintiff was advised that he must submit a Certificate of Funds in Prisoner's Account completed and signed by an authorized officer at the prison, and must attach a copy of his prisoner trust account statement showing transactions for the last six months. Plaintiff was further advised that his failure to pay the filing fee or, alternatively, to file a completed IFP application, within thirty days, would result in dismissal of the action. Along with said notice, plaintiff was sent a copy of the court-approved prisoner's IFP application, instructions for completing it, and a return envelope. On August 5, 2008, shortly before the thirty-day deadline for plaintiff to comply

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with the court's filing-fee requirements, plaintiff filed a copy of his prisoner trust account statement showing deposits made to the account from "Inmate Payroll" during the months of January through October 2007, and a check deposit made to the account in June 2008. Plaintiff also attached a copy of his prisoner trust account statement showing the amount of restitution owed by plaintiff between February 2005 and June of 2008. Plaintiff did not, however, file a copy of his prisoner trust account statement showing transactions, including the balance of funds, in his account for the last six months, or a Certificate of Funds in Prisoner's Account completed and signed by an authorized officer at the prison. As more than thirty days have passed since the deficiency notice was sent to plaintiff and he has not filed a completed IFP application or paid the filing fee, the above-titled action is hereby DISMISSED without prejudice. Additionally, the incomplete application to proceed in forma pauperis is hereby DENIED and no fee is due. This order terminates Docket No. 2. The Clerk shall close the file. IT IS SO ORDERED. DATED: October 21, 2008 MAXINE M. CHESNEY United States District Judge

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