Campos Arce v. Six Unknown Named Agents et al

Filing 2

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 also mailed to plaintiff)(All non-registered users served via U.S. Mail Service)(kaj)

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Campos Arce v. Six Unknown Named Agents et al

Doc. 2

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 Plaintiff, an inmate currently incarcerated at the Airpark Unit Correctional Center located in Big Spring, Texas and proceeding pro se, filed this action entitled "Civil Rights Action under 4 2 USCS 1983 Complaints Under 2255." Plaintiff has not prepaid the $350 filing fee mandated b y 28 U.S.C. § 1914(a) to commence a civil action; nor has he filed a Motion to Proceed In F o rm a Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). I. F a ilu r e to Pay Filing Fee or Request IFP Status All parties instituting any civil action, suit or proceeding in any district court of the U n ite d States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 2 8 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay this filing fee only i f the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. -1S IX UNKNOWN NAMED AGENTS; B A R A C K OBAMA, President, D e f e n d a n ts . vs. F E R N A N D O CAMPOS ARCE, BOP #11851-298, P l a in tif f , O R D E R DISMISSING CIVIL A C T I O N WITHOUT PREJUDICE F O R FAILING TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) AND/OR F A IL IN G TO MOVE TO PROCEED I N FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) Civil No. 1 0 - 1 9 1 1 LAB (AJB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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10cv1911 LAB (AJB)

Dockets.Justia.com

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 1 6 9 F.3d 1176, 1177 (9th Cir. 1999). Plaintiff has not prepaid the $350 filing fee required to commence a civil action, nor has h e submitted a Motion to Proceed IFP. Therefore, the case must be dismissed pursuant to 28 U .S .C . § 1914(a). Id. 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).1 I T IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with this C o u rt's approved form "Motion and Declaration in Support of Motion to Proceed In Forma P a u p e ris ." If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the e n c lo s e d Motion to Proceed IFP within that time, this action shall remain dismissed without p re ju d ice and without further Order of the Court.

D A T E D : September 16, 2010

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

Plaintiff is cautioned that if he chooses to proceed further with this action either by paying the full civil filing fee required by 28 U.S.C. § 1914(a), or moving to proceed IFP, his Complaint will be screened and is likely to be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(b). See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte 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)).
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