Scott et al v. California Department of Corrections and Rehabilitation et al

Filing 2

ORDER DISMISSING CASE. Court dismisses the action sua sponte w/o prejudice for failing to pay the $350 filing fee or file a Motion for IFP. All listed prisoners are terminated as Plaintiffs other than Byron Scott, CDCR #K-14635. Only Pla Bryon Scott is granted 45 days leave from the date of this Order is filed to: a.) prepay the entire $350 civil filing fee in full, or b.) complete and file a Motion for IFP, which includes a certified copy of his trust acct statements for the 6-month period preceding the filing of the Complaint. Plaintiffs Denault, Shaun Garland, David Hildreth, C Hill, J Jordan, B Montaque, D Norman, A Powell, S Riley, T Sampson, C Simpson, L Singleton, A Thompson, Otis Tooks, T Woodson, E Chappell and N Condiff are terminated. Signed by Judge Irma E. Gonzalez on 5/4/2010. (Blank Motion for IFP Form t/w copy of this Order mailed to Pla Byron Scott) (All non-registered users served via U.S. Mail Service)(jah)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 vs. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; EMPLOYEES OF CALIPATRIA STATE PRISON ("STAFF PERSONNEL"), Defendants. Plaintiffs, state prisoners currently incarcerated at Calipatria State Prison ("CAL") in BYRON L. SCOTT, et al., CDC #K-14735, Plaintiffs,
Civil No.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

10-0917 IEG (CAB)

ORDER DISMISSING CIVIL ACTION FOR FAILING TO PAY FILING FEES PURSUANT TO 28 U.S.C. § 1914(a) AND FAILING TO MOVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a)

20 Calipatria, California, and proceeding pro se, have filed a civil rights "Complaint and Affidavit 21 for Investigation and Prosecution." 22 Because Plaintiffs claim the California Department of Corrections and Rehabilitation and 23 unidentified prison officials at CAL violated their rights under various provisions of the U.S. 24 Constitution and California law since a racial riot occurred on CAL's Facility C on March 20, 25 2010 (Compl. at 1-3), the Court liberally construes the action to arise under the Civil Rights Act, 26 42 U.S.C. § 1983. See Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) 27 ("Courts have a duty to construe pro se pleadings liberally, including pro se motions as well as 28 complaints." ).
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10cv0917

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I. Failure to Pay Filing Fee or Request IFP Status Any party instituting a civil action, suit or proceeding in a district court of the United

4 States, other than a writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. 5 § 1914(a). An action may proceed despite a party's failure to pay only if the party is granted 6 leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). None of the named Plaintiffs have paid the $350 8 filing fee required to maintain this civil action, nor have any of them submitted a motion to 9 proceed IFP pursuant to 28 U.S.C. § 1915(a). 10 11 12 II. Proper Plaintiffs There are eighteen individuals listed as Plaintiffs in this matter but the Complaint was

13 submitted by Plaintiff Byron Scott, CDCR #K-14735, who asks the Court to "consider" the 14 complaint on behalf of himself and 17 other "aggrieved parties." (Compl. at 4.) However, Scott 15 is a prisoner proceeding pro se; therefore, he has no authority to represent the legal interests of 16 anyone other than himself. See Cato v. United States, 70 F.3d 1103, 1105 n.1 (9th Cir. 1995); 17 C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987). Moreover, assuming 18 Plaintiff Scott seeks to proceed IFP only on his own behalf in this matter pursuant to 28 U.S.C. 19 § 1915(a), he will nevertheless be required to "pay the full amount of a filing fee." See 28 20 U.S.C. § 1915(b)(1); see also Hubbard v. Haley, 262 F.3d 1194, 1197-98 (11th Cir. 2001) 21 (holding that 28 U.S.C. § 1915(b) does not permit multiple prisoner-plaintiffs to proceed IFP in 22 one civil action). 23 Finally, to the extent the complaint seeks a "prosecution" and is also addressed to the San

24 Diego County District Attorney's Office and the U.S. Attorney General, such relief is not 25 available in a private civil action. See e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th 26 Cir.1980) (federal civil rights statutes provide no private right of action and cannot form basis 27 for civil suit); Pawelek v. Paramount Studios Corp., 571 F. Supp. 1082, 1083 (N.D. Ill.1983) (no 28 private cause of action inherent in federal criminal statutes defining civil rights violations).
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III. 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

5 filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); 6 (2) TERMINATES as parties all prisoners listed as Plaintiffs other than Byron Scott,

7 CDCR #K-14735, and 8 (3) GRANTS only Plaintiff Byron Scott, CDCR # K-14735, forty-five (45) days leave

9 from the date this Order is filed to: (a) prepay the entire $350 civil filing fee in full; or 10 (b) complete and file a Motion to Proceed IFP which includes a certified copy of his trust 11 account statements for the 6-month period preceding the filing of his Complaint pursuant to 28 12 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b). 13 14 IT IS FURTHER ORDERED that: (3) the Clerk of the Court shall mail Plaintiff Scott the Court's approved form "Motion

15 and Declaration in Support of Motion to Proceed In Forma Pauperis," along with a copy of this 16 Order.1 If Plaintiff Scott fails to either prepay the $350 civil filing fee or complete and submit 17 his Motion to Proceed IFP within forty-five (45) days, this action shall remain dismissed without 18 prejudice and without further Order of the Court. 19 IT IS SO ORDERED.

20 DATED: May 4, 2010 21 22 23 24 by paying the full civil filing fee required by 28 U.S.C. § 1914(a), or moving to proceed IFP, the complaint he has already submitted will be screened and may be dismissed pursuant to 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) 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 if the Complaint filed by Plaintiff Scott is dismissed under these provisions, it may be counted as a 28 See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) ("Prisoners who have repeatedly
brought unsuccessful suits may entirely be barred from IFP status under the three strikes rule[.]"). -3H:\'09-10\Pro se\10cv917 -- dismissing for failure to pay.wpd.

IRMA E. GONZALEZ, Chief Judge United States District Court

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Plaintiff Scott is further cautioned that if he chooses to proceed further with this action either

(en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte

"strike" against him if he requests IFP status in any future civil action filed while he is incarcerated.

10cv0917