Ausler v. Thompson et al

Filing 5

ORDER DISMISSING CIVIL ACTION For Failing to Pay Filing Fee and For Failing to Move Informa Pauperis. The Court hereby dismisses this action sua sponte without prejudice for failing to pay the $350 filing fee or file a Motion to Proceed IFP purs uant to 28 U.S.C. §§ 1914(a) and 1915(a); and Grants Plaintiff 45 days leave to prepay the $350 filing fee in full, or complete and file a Motion to Proceed IFP. Signed by Judge Michael M. Anello on 7/15/2011. (Motion to Proceed IFP mailed to plaintiff)(All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PHENENO KENZELL AUSLER,
AKA KENNY WALKER
CDCR #p-21872,

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Civil No.

Plaintiff,

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vs.

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TAWAINA THOMPSON, et al.,

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11cv1427 MMA (NLS)

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)

Defendants.

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Plaintiff, a state prisoner currently incarcerated at the Richard J. Donovan Correctional

21 Facility located in San Diego, California, and proceeding pro se, filed this civil action. Plaintiff
22 did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); nor did he submit a Motion
23 to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).
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FAILURE TO PAY FILING FEE OR REQUEST IFP STATUS

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Any party instituting a civil action, suit or proceeding in a district court of the United

26 States, other than a writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C.
27 § 1914(a). An action may proceed despite a party’s failure to pay only if the party is granted
28 leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Andrews v.
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11cv1427MMA (NLS)

1 Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th
2 Cir. 1999). As noted above, Plaintiff did not prepay the $350 filing fee required to commence
3 a civil action when he filed it; nor has he submitted a Motion to Proceed IFP. Therefore, the
4 case must be dismissed pursuant to 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 his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b).
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IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with

14 the Court’s form “Motion and Declaration in Support of Motion to Proceed In Forma
15 Pauperis.” If Plaintiff fails to either 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: July 15, 2011
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Hon. Michael M. Anello
United States District Judge

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11cv1427MMA (NLS)