Heizelman v. Garcia et al

Filing 3

ORDER DISMISSING CASE; the Court dismisses this action sua sponte without prejudice for failing to pay the $350 filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and grants Plaintiff forty five (4 5) days leave from the date this Order is filed to prepay the entire $350 civil filing fee in full, or complete and file a Motion to Proceed IFP which includes a certified copy of his trust account statement for the 6-month period preceding the filing of his Complaint; Signed by Judge Larry Alan Burns on 9/16/10 (Motion for IFP form also mailed to plaintiff)(All non-registered users served via U.S. Mail Service)(kaj)

- P O R Heizelman v. Garcia et al

Doc. 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G A R C IA , et al., D e f e n d a n ts . vs. R O B E R T HEIZELMAN, B O P #20068-298, P l a in t i f f , O R D E R DISMISSING CIVIL A C T I O N FOR FAILING TO PAY F I L I N G FEES PURSUANT TO 28 U.S.C. § 1914(a) AND FOR F A IL IN G TO MOVE IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) Civil No. 10-1896 LAB (POR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff, currently incarcerated at Metropolitan Correctional Center, and proceeding pro s e , has filed a civil rights complaint. I. F AILURE TO PAY FILING FEE OR REQUEST IFP STATUS A n y party instituting a civil action, suit or proceeding in a district court of the United S ta te s , other than a writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay only if the party is granted le a v e to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Andrews v. C e rv a n te s, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th C ir. 1999). However, Plaintiff has not prepaid the $350 filing fee required to commence a civil a c tio n ; nor has he submitted a Motion to Proceed IFP. Therefore, the case must be dismissed p u rsua n t to 28 U.S.C. § 1914(a).

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II.

C o n c lu s io n and Order F o r the reasons set forth above, the Court hereby: (1 ) D I S M I S S E S this action sua sponte without prejudice for failing to pay the $350

f ilin g fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and (2 ) G R A N T S Plaintiff forty five (45) days leave 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 I F P which includes a certified copy of his trust account statement for the 6-month period p re c e d in g the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b). I T IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with the C o u r t' s form "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 enclosed M o tio n to Proceed IFP within that time, this action shall remain dismissed without prejudice and w ith o u t further Order of the Court. I T IS SO ORDERED.

D A T E D : September 16, 2010

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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