Williams v. Unnamed Defendants

Filing 2

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 is Granted forty-five (45) days to pay the entire $350 filing fee, or (2) file a new 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. Signed by Judge Gonzalo P. Curiel on 1/11/2013. Plaintiff provided with new IFP Form(All non-registered users served via U.S. Mail Service)(srm)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

DELBERT WILLIAMS,
CDCR #D-68440,

Civil No.

Plaintiff,

13
vs.

14
15
16

UNNAMED DEFENDANTS,
Defendants.

17

13cv0046 GPC (BGS)

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)

18
Delbert Williams (“Plaintiff”), currently incarcerated at the California Medical Facility

19

20 in Vacaville, California, and proceeding pro se, has filed a civil action.
21 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

22

23 United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See
24 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay this filing fee only
25 if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C.
26 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook,
27 169 F.3d 1176, 1177 (9th Cir. 1999).
28 / / /

C:\Users\lc1curiel\AppData\Local\Temp\notes8BFA41\13cv0046-dsm-no-pay-IFP.wpd

-1-

13cv0046 GPC (BGS)

1

Plaintiff has not prepaid the $350 filing fee required to commence a civil action, nor has

2 he submitted a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). Therefore, the action
3 cannot yet proceed. Id.
4 II.

Conclusion and Order

5

For the reasons set forth above, the Court hereby:

6

(1)

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

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

(2)

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

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

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

13 Court’s approved form “Motion and Declaration in Support of Motion to Proceed In Forma
14 Pauperis.” If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the
15 enclosed Motion to Proceed IFP within that time, this action shall remain dismissed without
16 prejudice and without further Order of the Court.
17 DATED: January 11, 2013
18
HON. GONZALO P. CURIEL
United States District Judge

19
20
21
22
23
24
1

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

25 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 and regardless of his fee status if the Court finds it frivolous
26 or malicious, if it fails to state a claim, or if he seeks monetary relief from a defendant who is immune
pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(b). See Lopez v. Smith, 203 F.3d 1122,

27 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 complaint that fails to state a claim); see also Rhodes
28 v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing sua sponte screening required by 28 U.S.C.
§ 1915A(b) of all prisoner complaints).
C:\Users\lc1curiel\AppData\Local\Temp\notes8BFA41\13cv0046-dsm-no-pay-IFP.wpd

-2-

13cv0046 GPC (BGS)