Jordan v. Mitchell et al

Filing 2

ORDER DISMISSING CASE For Failing to Pay Filing Fees Pursuant to 28 U.S.C. 1914(a) and for Failing to Move In Forma Pauperis Pursuant to 28 U.S.C. 1915(a). For the reasons stated herein, the Court hereby dismissed this action sua sponte without preju dice for failing to pay the $350 fee or file a Motion to proceed IFP. The Court grants Plaintiff 45 days leave from the date this order is filed to prepay the entire filing fee, or complete and file a Motion to proceed IFP. Signed by Judge Michael M. Anello on 10/20/2010. (Motion for IFP form mailed to Pro Per)(All non-registered users served via U.S. Mail Service)(leh)

-PCL Jordan v. Mitchell et al

Doc. 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Plaintiff, currently incarcerated at Calipatria State Prison, in Calipatria, California, and 20 proceeding pro se, has filed a civil action entitled "Request for Entry of Default" in which he 21 apparently seeks to serve and sue various Calipatria State Prison officials based on allegations 22 that they violated his "commercial, civil, constitutional and human rights." See Compl. at 18. 23 I. 24 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 vs. JOHN MITCHELL, et al., Defendants. IMHOTEP JORDAN, Jr., aka JOHN JORDAN, CDCR #C-71742, Plaintiff,
Civil No.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

10-1951 MMA (PCL)

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

25 States, other than a writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. 26 § 1914(a). An action may proceed despite a party's failure to pay only if the party is granted 27 leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Andrews v. 28 Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th
-110cv1951

K:\COMMON\EVERYONE\_EFILE-PROSE\MMA\10cv1951-dsm-no-pay-IFP.wpd.

Dockets.Justia.com

1 Cir. 1999). However, Plaintiff has not prepaid the $350 filing fee required to commence a civil 2 action; nor has he submitted a Motion to Proceed IFP. Therefore, the case must be dismissed 3 pursuant to 28 U.S.C. § 1914(a). 4 II. 5 6 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

7 filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and 8 (2) GRANTS Plaintiff forty five (45) days leave from the date this Order is filed to:

9 (a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion to Proceed 10 IFP which includes a certified copy of his trust account statement for the 6-month period 11 preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b). 12 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with the 13 Court's form "Motion and Declaration in Support of Motion to Proceed In Forma Pauperis." 14 If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the enclosed 15 Motion to Proceed IFP within that time, this action shall remain dismissed without prejudice and 16 without further Order of the Court.1 17 IT IS SO ORDERED. 18 DATED: October 20, 2010 19 20 21 22 23 24 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. 25 § 1915(e)(2)(b). See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 26 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, such a dismissal may 27 be counted as a "strike" against Plaintiff if he requests IFP status in any future civil action filed while 28 who have repeatedly brought unsuccessful suits may entirely be barred from IFP status under the three
strikes rule[.]").
K:\COMMON\EVERYONE\_EFILE-PROSE\MMA\10cv1951-dsm-no-pay-IFP.wpd.

Hon. Michael M. Anello United States District Judge

1

Plaintiff is cautioned that if he chooses to proceed further with this action either by paying the

U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis

he is incarcerated. See Andrews, 493 F.3d at 1052 (under the Prison Litigation Reform Act, "[p]risoners

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10cv1951