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)

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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)

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