Pittman v. Brown et al

Filing 2

ORDER: The Court (1) dismisses this action sua sponte without prejudice for failing to pay the $350 filing fee or file a Motion to Proceed In Forma Pauperis pursuant to 28 U.S.C. Sections 1914(a) and 1915(a); and (2) grants Plaintiff 45 days lea ve from the date this Order is filed to: (a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion to Proceed In Forma Pauperis. The Clerk of the Court shall provide Plaintiff with this Court's approved form &qu ot;Motion and Declaration in Support of Motion to Proceed In Forma Pauperis." If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the Motion to Proceed In Forma Pauperis within that time, this action shall remain dismissed without prejudice and without further Order of the Court. Signed by Judge William Q. Hayes on 4/3/2009. (All non-registered users served via U.S. Mail Service; a blank IFP motion form sent to Plaintiff.) (mdc)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Plaintiff, an inmate currently incarcerated at the California Rehabilitation Center in 20 Norco, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. 21 § 1983. Plaintiff seeks incomprehensible injunctive relief as well as trillions of dollars in general 22 and punitive damages against several San Diego Superior Court Judges. Plaintiff's three-page 23 Complaint contains absolutely no factual allegations and asserts no violations of constitutional 24 law. 25 I. 26 Failure to Pay Filing Fee or Request IFP Status All parties instituting any civil action, suit or proceeding in any district court of the vs. FRAKLIN BROWN, Judge; DAVID J. DANALSEN, Judge; WILLIAM H. KENNDY, Judge, DAVID S., Judge, Defendants. WILBUR LANN PITTMAN, CDCR #F-64353, Plaintiff, Civil No. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 09-0316 WQH (JMA) ORDER DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILING TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) AND/OR FAILING TO MOVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) 27 United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay this filing fee only K:\COMMON\EVERYONE\_EFILE-PROSE\WQH\09cv0316-dsm-no-pay-IFP.wpd -1- 09cv0316 1 if the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. 2 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 3 169 F.3d 1176, 1177 (9th Cir. 1999). Here, Plaintiff has not prepaid the $350 filing fee required 4 to commence a civil action, nor has he submitted a Motion to Proceed IFP. Therefore, the case 5 must be dismissed pursuant to 28 U.S.C. § 1914(a). Id. 6 II. 7 8 Conclusion and Order For the reasons set forth above, the Court hereby: (1) DISMISSES this action sua sponte without prejudice for failing to pay the $350 9 filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and 10 (2) GRANTS Plaintiff forty five (45) days leave from the date this Order is filed to: 11 (a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion to Proceed 12 IFP which includes a certified copy of his trust account statement for the 6-month period 13 preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b).1 14 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with this 15 Court's approved form "Motion and Declaration in Support of Motion to Proceed In Forma 16 Pauperis." If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the 17 enclosed Motion to Proceed IFP within that time, this action shall remain dismissed without 18 prejudice and without further Order of the Court. 19 DATED: April 3, 2009 20 21 22 23 24 full civil filing fee required by 28 U.S.C. § 1914(a), or moving to proceed IFP, his patently insubstantial Complaint will be subject to the mandatory screening and sua sponte dismissal provisions of 28 U.S.C. 25 § 1915A(b) and 28 U.S.C. § 1915(e)(2)(b). See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 1 WILLIAM Q. HAYES United States District Judge Plaintiff is cautioned that if he chooses to proceed further with this action either by paying the 26 dismiss an in forma pauperis complaint that fails to state a claim); see also Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (discussing sua sponte screening required by 28 U.S.C.§ 1915A(b)). Moreover, 27 such a dismissal may be counted as a "strike" against Plaintiff if he requests IFP status in any future civil action filed while he is incarcerated. See Andrews, 493 F.3d at 1052 (under the Prison Litigation IFP status under the three strikes rule[.]"). (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte 28 Reform Act, "[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from K:\COMMON\EVERYONE\_EFILE-PROSE\WQH\09cv0316-dsm-no-pay-IFP.wpd -2- 09cv0316

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