Pittman v. Kenndy et al

Filing 2

ORDER DISMISSING CASE. Court sua sponte dismisses case w/o prejudice for failing to pay the $350 filing fee or file a Motion for IFP pursuant to 28 USC 1914(a) and 1915(a). Pla granted 45 days leave form the date of this Order is filed to a.) pr epay the entire $450 filing fee, or. b). complete and file a Motion to Proceed IFP w/ a certified copy of his trust acct statement for thr 6 month period preceding the filing of the Complaint. If Pla fails to either prepay the $350 filing f ee or submit a Motion to Proceed IFP within that time, action shall be dismissed w/o prejudice and w/o further Order of Court. Signed by Judge Irma E. Gonzalez on 3/25/2009. Case is closed. Blank Motion for IFP form t/w copy of this Order mailed to Plaintiff. (All non-registered users served via U.S. Mail Service).(jah) (av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Plaintiff, an inmate currently incarcerated at the California Rehabilitation Center in 21 Norco, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. 22 § 1983. Plaintiff seeks injunctive relief as well as trillions of dollars in general and punitive 23 damages against San Diego Superior Court Judges and two other persons who are named but not 24 further identified. Plaintiff's Complaint comprises three paragraphs of incomprehensible factual 25 allegations and asserts no violations of constitutional law. (Compl. at 4-6.) 26 I. 27 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. WILLIAM H. KENNDY, Judge; DAVID J. DANIELSON, Judge; D.L. RUNNELS; M. MARTEL, Defendants. WILBUR LANN PITTMAN, CDCR #F-64353, Plaintiff,
Civil No.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

09-0546 IEG (AJB)

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)

28 United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See
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-1-

09cv0546

1 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay this filing fee only 2 if the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 4 169 F.3d 1176, 1177 (9th Cir. 1999). Here, Plaintiff has not prepaid the $350 filing fee required 5 to commence a civil action, nor has he submitted a Motion to Proceed IFP. Therefore, the case 6 must be dismissed pursuant to 28 U.S.C. § 1914(a). Id. 7 II. 8 9 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

10 filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and 11 (2) GRANTS Plaintiff forty five (45) days leave from the date this Order is filed to:

12 (a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion to Proceed 13 IFP which includes a certified copy of his trust account statement for the 6-month period 14 preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b).1 15 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with this

16 Court's approved form "Motion and Declaration in Support of Motion to Proceed In Forma 17 Pauperis." If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the 18 enclosed Motion to Proceed IFP within that time, this action shall remain dismissed without 19 prejudice and without further Order of the Court. 20 DATED: March 25, 2009 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

IRMA E. GONZALEZ, Chief Judge United States District Court
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[.]").
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(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
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