Gonzalez Garcia v. MCC Medical Staff et al

Filing 2

ORDER DISMISSING CASE without prejudice for failing to pay filing fee required by 28 USC 1914(a) and/or failing to proceed in forma pauperis pursuant to 28 USC 1915(a). Plaintiff is granted 45 days leave from the date this Order is filed to: (a) prep ay the entire $350 civil fee in full; or (b) complete and file a Motion to Proceed IFP. (blank motion to proceed in forma pauperis mailed to plaintiff). Signed by Judge John A. Houston on 05/17/11.(All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSÉ GONZALEZ GARCIA,
BOP #92144-198,

Civil No.

Plaintiff,

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vs.

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11-1028 JAH (POR)

MCC MEDICAL STAFF;
INS; U.S. BORDER PATROL,

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Defendants.

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)

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Plaintiff, a federal prisoner currently incarcerated at the Metropolitan Correctional Center

20 in San Diego, California, and proceeding pro se, has filed a civil rights Complaint pursuant to
21 42 U.S.C. § 1983. Plaintiff has neither prepaid the $350 filing fee mandated by 28 U.S.C.
22 § 1914(a) to commence a civil action, nor filed a Motion to Proceed In Forma Pauperis (“IFP”)
23 pursuant to 28 U.S.C. § 1915(a).
24 I.
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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 IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v.
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11cv1028 JAH (POR)

1 Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th
2 Cir. 1999).
Because Plaintiff has not prepaid the $350 filing fee nor submitted a Motion to Proceed

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4 IFP, this civil action cannot proceed. Id.; 28 U.S.C. § 1914(a).
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Conclusion and Order

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For the reasons set forth above, the Court hereby:

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(1)

DISMISSES this action sua sponte without prejudice for failing to pay the $350

8 filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and
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(2)

GRANTS Plaintiff forty five (45) days leave from the date this Order is filed to:

10 (a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion to Proceed
11 IFP which includes a certified copy of his trust account statement for the 6-month period
12 preceding the filing of the Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b).1
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IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with this

14 Court’s approved form “Motion and Declaration in Support of Motion to Proceed In Forma
15 Pauperis.” If Plaintiff fails to prepay the $350 civil filing fee or complete and submit the
16 enclosed Motion to Proceed IFP within that time, this action shall remain dismissed without
17 prejudice and without further Order of the Court.
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IT IS SO ORDERED.

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20 DATED: May 17, 2011
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_________________________________________
HON. JOHN A. HOUSTON
United States District Judge

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

26 full civil filing fee required by 28 U.S.C. § 1914(a), or moving to proceed IFP, his Complaint will be
screened and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C.
27 § 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

28 complaint that fails to state a claim); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

(discussing similar screening procedure required for all prisoner complaints by 28 U.S.C. § 1915A(b)).
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11cv1028 JAH (POR)