Miller v. McEwen et al

Filing 2

ORDER DISMISSING CASE without Prejudice for Failing to Pay Filing Fee and/or Failing to Move to Proceed in Forma Pauperis. Plaintiff has forty-five (45) days leave from the date this Order is filed to: (a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion to Proceed IFP. Signed by Judge Roger T. Benitez on 6/26/2012.(Sent IFP form to Plaintiff)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GERALD LEE MILLER,
CDCR # C-92075,

Civil No.

Plaintiff,

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vs.

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L.S. McEWEN; G.J. JANDA; R.
LIZARRAGA; DR. RICHARD
KORNBLUTH; PARAMO; H. AMEZCUA;
S. HARDMAN; ALVAREZ; T. ALVAREZ;
B. DOMINGUES; C. VILLALOBOS;
A. CASTRO; J. FLORES; M. VITELA;
ZAMORA,

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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)

Defendants.

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Plaintiff, an inmate currently incarcerated at Kern Valley State Prison located in Delano,

23 California, and proceeding pro se, has filed this civil rights action pursuant to 42 U.S.C. § 1983.
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I.

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.
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12cv1481 BEN (WVG)

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

4 to commence a civil action; nor filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant
5 to 28 U.S.C. § 1915(a), this action must be dismissed pursuant to 28 U.S.C. § 1914(a). Id.
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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

9 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:

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).
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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.
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DATED: June 26, 2012
Hon. Roger T. Benitez
United States District Judge

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12cv1481 BEN (WVG)