Murillo v. Parkinson et al

Filing 2

ORDER DISMISSING CASE without prejudice for failing to pay filing fee required by 28 U.S.C. §1914 (a) and/or failing to move to proceed informa pauperis pursuant to 28 U.S.C. §1915 (a). Signed by Judge Roger T. Benitez on 08/08/11. (Forms mailed) (All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAMON MURILLO,
CDCR #P-43503,

Civil No.
Plaintiff,

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vs.

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11-1687 BEN (BGS)

IAN PARKINSON, et al.,

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Defendants.

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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)

Plaintiff, currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in

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San Diego, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42

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U.S.C. § 1983.

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Plaintiff claims San Luis Obispo County Sheriff’s Department and RJD officials beat

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him, denied him access to court and retaliated against him in various ways for exercising his

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right to petition for redress. (See Pl.’s Mem. in Supp. of Compl. [ECF No. 1] at 15-24.)

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However, Plaintiff has neither prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a) to

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commence a civil action, nor has he filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a).

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11cv1687 BEN (BGS)

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I.

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Failure to Pay Filing Fee or Request IFP Status

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All parties instituting any civil action, suit or proceeding in any district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See

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28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay this filing fee only

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if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v.

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Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th

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Cir. 1999).

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Because Plaintiff has not prepaid the $350 filing fee nor submitted a Motion to Proceed
IFP, this civil action cannot proceed. Id.; 28 U.S.C. § 1914(a).

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II.

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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)

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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
(2)

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

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(a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion to Proceed

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IFP which includes a certified copy of his trust account statement for the 6-month period

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preceding the filing of the Complaint. See 28 U.S.C. § 1915(a)(2); S.D. C AL. C IVLR 3.2(b).

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IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with this

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Court’s approved form “Motion and Declaration in Support of Motion to Proceed In Forma

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Pauperis.” If Plaintiff fails to prepay the $350 civil filing fee or complete and submit the

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enclosed Motion to Proceed IFP within that time, this action shall remain dismissed without

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prejudice and without further Order of the Court.

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IT IS SO ORDERED.
DATED: August 8, 2011

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Hon. Roger T. Benitez
United States District Judge

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11cv1687 BEN (BGS)