Le v. Six Unknown Names Agents et al

Filing 2

ORDER DISMISSING CASE sua sponte without prejudice for failing to pay the $400 civil filing and administrative fee or submit a Motion to Proceed IFP pursuant to 28 U.S.C. § 1914(a) and § 1915(a). The Court grants Plaintiff forty five ( 45) days leave from the date this Order is filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete and file a 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 Larry Alan Burns on 11/8/13 (form mailed to plaintiff) (All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THO LE,
Inmate Booking No. 16147-097,

Civil No.

Plaintiff,

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vs.

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SIX UNKNOWN NAMES AGENTS;
BARACK OBAMA,
Defendants.

13cv2594 LAB (NLS)

ORDER DISMISSING CIVIL
ACTION WITHOUT PREJUDICE
FOR FAILING TO PAY
FILING FEES 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, currently detained at the Etowah County Jail in Gadsden, Alabama, and

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21 proceeding pro se, filed an incomprehensible one-page complaint entitled “Civil Rights
22 Action with the Writ of Summons and Complaint” “under 42 U.S.C. § 1983” (ECF Doc.
23 No. 1) on October 25, 2013.
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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

26 the United States, except an application for writ of habeas corpus, must pay a filing fee
27 of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to
28 pay this filing fee only if the party is granted leave to proceed in forma pauperis (“IFP”)

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13cv2594 LAB (NLS)

1 pursuant to 28 U.S.C. § 1915(a).1 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th
2 Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

Plaintiff has not prepaid the $400 in filing and administrative fees required to

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4 commence a civil action, nor has he submitted a Motion to Proceed IFP pursuant to 28
5 U.S.C. § 1915(a). Therefore, the case cannot yet proceed. See 28 U.S.C. § 1914(a);
6 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

10 $400 civil filing and administrative fee or submit a Motion to Proceed IFP pursuant to
11 28 U.S.C. § 1914(a) and § 1915(a); and

(2)

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13 filed to:

GRANTS Plaintiff forty five (45) days leave from the date this Order is
(a) prepay the entire $400 civil filing and administrative fee in full; or

14 (b) complete and file a Motion to Proceed IFP which includes a certified copy of his trust
15 account statement for the 6-month period preceding the filing of his Complaint. See 28
16 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b).2
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In addition to the $350 statutory fee, all parties filing civil actions on or after May 1,
2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a), (b); Judicial
22 Conference Schedule of Fees, District Court Misc. Fee Schedule, eff. May 1, 2013. However,
the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP.
23 Id.
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Plaintiff is cautioned that if he chooses to proceed further with this action either by
paying the full $400 in civil and administrative fees required by 28 U.S.C. § 1914(a), or moving
25 to proceed IFP, his Complaint, which is currently comprised of a single page of nonsensical legal
jargon seeking “one hundred million[] dollars” in damages against unidentified “agents” and the
26 President of the United States, will be screened and immediately dismissed as frivolous 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
28 claim); see also Rhodes 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).
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13cv2594 LAB (NLS)

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

2 with this Court’s approved form “Motion and Declaration in Support of Motion to
3 Proceed In Forma Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee
4 or complete and submit the enclosed Motion to Proceed IFP within that time, this action
5 shall remain dismissed without prejudice and without further Order of the Court.
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7 DATED: November 8, 2013
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HONORABLE LARRY ALAN BURNS
United States District Judge

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