Phillips v. Janda et al

Filing 2

ORDER DISMISSING CASE For Failing to Pay Filing Fee Required and/or Failing to Move to Proceed In Forma Pauperis. The Court hereby Dismisses this action without prejudice, and Grants Plaintiff 45 days leave from the date this Order is filed to prepay the entire $350 civil filing fee in full or complete and file a Motion to Proceed IFP. If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the enclosed Motion to Proceed IFP within that time, this action shall remain dismissed without prejudice and without further Order of the Court. Signed by Judge John A. Houston on 3/22/2013. (IFP Form Mailed to Pro Per)(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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IVORY J. PHILLIPS,
CDCR #F-90996,

Civil No.

Plaintiff,

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vs.

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GERALD JANDA, et al.,
Defendants.

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13cv0567 JAH (WMc)

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)

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

20 Facility in San Diego, California, and proceeding pro se, has submitted a civil rights Complaint
21 pursuant to 42 U.S.C. § 1983 (ECF Doc. No. 1).1
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The Court takes judicial notice of another proceeding filed by Plaintiff pursuant to 28 U.S.C.

23 § 2254. See Phillips v. Cal. Dept. of Corrections and Rehabilitation, S.D. Cal. Civil Case No. 12cv2870
WQH (BGS); Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (court “‘may take notice of
24 proceedings in other courts, both within and without the federal judicial system, if those proceedings
have a direct relation to matters at issue.’” (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2

25 (9th Cir. 2002)). Judge Hayes dismissed Plaintiff’s habeas petition on January 4, 2013, however, in part
because it appeared to challenge the conditions of his confinement and not the fact or duration of his
26 confinement. See Jan. 4, 2013 Order [ECF Doc. No. 4] in S.D. Cal. Civil Case No. 12cv2870 WQH
(BGS) at 2-3. Plaintiff was granted leave to amend his habeas petition, if he “wishe[d] to challenge the

27 validity of his state court conviction and proceed with [that] case,” but was also notified that if he
instead “wishe[d] to challenge the conditions of his confinement, he must file a complaint pursuant to
28 42 U.S.C. § 1983 which [would] be given a new case number.” Id. at 5-6. Plaintiff has apparently
decided to do both: on March 11, 2013, he submitted the civil rights complaint which has been assigned
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13cv0567 JAH (WMc)

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I.

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Failure to Pay Filing Fee or Request IFP Status

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

3 United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See
4 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay this filing fee only
5 if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C.
6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook,
7 169 F.3d 1176, 1177 (9th Cir. 1999).
Plaintiff has not prepaid the $350 filing fee required to commence a civil action, nor has

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9 he submitted a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). Therefore, the case
10 cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051.
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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

14 filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and
(2)

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

16 (a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion to Proceed
17 IFP which includes a certified copy of his trust account statement for the 6-month period
18 preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b).2
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22 to this Court as S.D. Cal. Civil Case No. 13cv0567 JAH (WMc), and on March 1, 2013, he filed a
Motion for Extension of Time in which to submit an amended habeas petition in S.D. Cal. Civil Case
23 No. 12cv2870 WQH (BGS) [ECF Doc. No. 6]. That motion remains pending before Judge Hayes, but
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has no relevance to this case.
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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 pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C.
26 § 1915(e)(2)(b) if the Court finds it frivolous or malicious, if it fails to state a claim, or if he seeks
damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)

27 (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 v. Robinson, 621
28 F.3d 1002, 1004 (9th Cir. 2010) (discussing sua sponte screening required by 28 U.S.C. § 1915A(b) of
all prisoner complaints).
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13cv0567 JAH (WMc)

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

2 Court’s approved form “Motion and Declaration in Support of Motion to Proceed In Forma
3 Pauperis.” If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the
4 enclosed Motion to Proceed IFP within that time, this action shall remain dismissed without
5 prejudice and without further Order of the Court.
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7 DATED:

March 22, 2013

_________________________________________

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HON. JOHN A. HOUSTON
United States District Judge

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13cv0567 JAH (WMc)