Walker v. Hubert et al

Filing 3

ORDER DISMISSING CIVIL ACTION without prejudice for Failing to Pay Filing Fee Required by 28 USC § 1914(a) and/or Failing to Move to Proceed In Forma Pauperis Pursuant to 28 USC § 1915(a). Plaintiff Granted forty five (45) days leave from the date of this Order to prepay the $400 civil filing fee or complete and submit the enclosed Motion to Proceed IFP. If Plaintiff fails to follow this Order, the action shall remain dismissed without prejudice and without further Order of the Court. Signed by Judge Barry Ted Moskowitz on 4/10/2014.(All non-registered users served via U.S. Mail Service)(Approved form served)(rlu) (per chambers, case remains open pending response from Plaintiff on 4/10/2014) (rlu).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JEFF E. WALKER,
CDCR # F-11343,

Civil No.

Plaintiff,

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vs.

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C/O HUBERT; C/O MOORE;
SGT. LUNA; LT. ACUNA;
C/O LABACO; C/O MURPHY;
NURSE DONOHUE; JOHN AND JANE
DOES,
Defendants.

14cv0788 BTM (KSC)

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, currently incarcerated at the Richard J. Donovan Correctional Facility

24 located in San Diego, California, and proceeding pro se, has filed a civil action pursuant
25 to 42 U.S.C. § 1983, along with a Motion entitled “Request TRO/Injunction under
26 ‘Imminent Danger’ Expedite due to Life in Danger in this Prison.” (ECF Doc. Nos. 1,
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14cv0788 BTM (KSC)

1 I.

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

3 the United States, except an application for writ of habeas corpus, must pay a filing fee
4 of $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a party’s failure to
5 pay this filing fee only if the party is granted leave to proceed in forma pauperis (“IFP”)
6 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th
7 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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9 commence a civil action, nor has he submitted a Motion to Proceed IFP pursuant to 28
10 U.S.C. § 1915(a). Therefore, the case cannot yet proceed. See 28 U.S.C. § 1914(a);
11 Andrews, 493 F.3d at 1051.
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Motion for Temporary Restraining Order

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At this time, the Court will defer ruling on Plaintiff’s Motion for Temporary

14 Restraining Order. If Plaintiff pays the filing fee or properly files a Motion to Proceed
15 IFP, the Court will rule on Plaintiff’s Motion. The actions complained of in Plaintiff’s
16 Complaint are alleged to have occurred in January of 2014 but the Motion fails to clearly
17 articulate what the current “imminent danger” Plaintiff is facing.
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In addition, the Court takes judicial notice that Plaintiff has filed seventeen civil

19 rights actions since 2008 in the Central, Eastern and Northern Districts of California. A
20 court “‘may take notice of proceedings in other courts, both within and without the
21 federal judicial system, if those proceedings have a direct relation to matters at issue.’”
22 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic,
23 Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). If Plaintiff chooses to file a Motion to
24 Proceed IFP, he may be barred by 28 U.S.C. § 1915(g).
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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) (Judicial 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. Id.
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14cv0788 BTM (KSC)

1 III.

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

4 $400 civil filing and administrative fee or submit a Motion to Proceed IFP pursuant to
5 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

7 filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or
8 (b) complete and file a Motion to Proceed IFP which includes a certified copy of his trust
9 account statement for the 6-month period preceding the filing of his Complaint. See 28
10 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

12 with this Court’s approved form “Motion and Declaration in Support of Motion to
13 Proceed In Forma Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee
14 or complete and submit the enclosed Motion to Proceed IFP within that time, this action
15 shall remain dismissed without prejudice and without further Order of the Court.
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DATED: April 10, 2014
BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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