Campos Arce v. Six Unknown Named Agents et al

Filing 2

ORDER DISMISSING CASE without Prejudice for Failing to Pay Filing Fee Required and/or Failing to Move to Proceed in forma pauperis: The Court grants Plaintiff 45 days leave from the date this Order is filed to: (a) prepay the entire $350 civil f iling fee in full; or (b) 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. The Clerk of the Court shall provide Plaintiff with this Court's approved form "Motion and Declaration in Support of Motion to Proceed In Forma Pauperis". Signed by Judge Janis L. Sammartino on 11/23/10.(All non-registered users served via U.S. Mail Service; IFP form sent)(lmt)

-CAB 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 Plaintiff, an inmate currently incarcerated at the Airpark Unit Correctional Center located vs. SIX UNKNOWN NAMED AGENTS; BARACK OBAMA, Mr. President, Defendants. FERNANDO CAMPOS ARCE, BOP #11851-298, Plaintiff,
Civil No.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

10-02354 JLS (CAB)

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)

20 in Big Spring, Texas and proceeding pro se, filed this action entitled "Civil Rights Action under 21 42 USCS 1983 Complaints Under 2255." Plaintiff has not prepaid the $350 filing fee mandated 22 by 28 U.S.C. § 1914(a) to commence a civil action; nor has he filed a Motion to Proceed In 23 Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). 24 I. 25 Failure to Pay Filing Fee or Request IFP Status All parties instituting any civil action, suit or proceeding in any district court of the

26 United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 27 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay this filing fee only 28 if the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C.
K:\COMMON\Chmb_Sammartino\Colin Davis 2010-2011\Prisoner\PSLC\10cv2354_Order Dismissing for Failure to Pay Filing Fee.wpd

-1-

10cv2354 JLS (CAB)

Dockets.Justia.com

1 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 2 169 F.3d 1176, 1177 (9th Cir. 1999). 3 Plaintiff has not prepaid the $350 filing fee required to commence a civil action, nor has 4 he submitted a Motion to Proceed IFP. Therefore, the case must be dismissed pursuant to 28 5 U.S.C. § 1914(a). Id. 6 II. 7 8 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

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

11 (a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion to Proceed 12 IFP which includes a certified copy of his trust account statement for the 6-month period 13 preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b).1 14 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with this 15 Court's approved form "Motion and Declaration in Support of Motion to Proceed In Forma 16 Pauperis." If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the 17 enclosed Motion to Proceed IFP within that time, this action shall remain dismissed without 18 prejudice and without further Order of the Court. 19 20 21 22 23 24 25 26 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 pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(b). 27 See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) 28 to state a claim); Rhodes v. Robinson, __ F.3d __, 2010 WL 3489777 at *1 (9th Cir. 2010) (discussing
similar screening procedure required by 28 U.S.C. § 1915A(b)). -2K:\COMMON\Chmb_Sammartino\Colin Davis 2010-2011\Prisoner\PSLC\10cv2354_Order Dismissing for Failure to Pay Filing Fee.wpd

DATED: November 23, 2010 Honorable Janis L. Sammartino United States District Judge

1

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

"not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails

10cv2354 JLS (CAB)