Figures v. Victorville USP Prison et al

Filing 2

ORDER DISMISSING CASE for Failure to Pay Filing Fees or Application to Proceed in Forma Pauperis. Signed by Judge Roger T. Benitez on 2/3/2017.(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:17-cv-00082-BEN-MDD

PHILLIP FIGURES,
CDCR #19908047,

ORDER DISMISSING COMPLAINT
FOR FAILURE TO PAY FILING
FEES OR APPLICATION TO
PROCEED IN FORMA PAUPERIS

Plaintiff,

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vs.

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VICTORVILLE USP PRISON, et al.,
Defendants.

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Phillip Figures (“Plaintiff’), who is currently incarcerated at the U.S. Penitentiary

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located in Adelanto, California, has filed a civil rights action. (Doc. No. 1.) Plaintiff

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claims his constitutional rights were violated while housed at the Victorville U.S.

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Penitentiary. See Doc. No. 1 at 1.

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A.

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Filing Fee
All parties instituting any civil action in a district court must pay a filing fee. 28

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U.S.C. § 1914(a). An action may proceed despite a plaintiffs failure to prepay the entire

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fee only if the plaintiff is granted leave to proceed in forma pauperis (“IFP”) pursuant to

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28 U.S.C. § 1915(a).

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3:17-CV-00082-BEN-MDD

Under 28 U.S.C. § 1915(a)(1),

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any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or
proceeding ... without prepayment of fees or security therefor,
by a person who submits an affidavit that includes a statement
of all assets such [person] possesses that the person is unable to
pay such fees or give security therefor.

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Plaintiff has not paid the filing fee or filed an application to proceed IFP. Accordingly,

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Plaintiffs action is DISMISSED without prejudice. If Plaintiff decides to refile his

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complaint, he must pay the filing fee or file an application to proceed IFP pursuant to 28

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U.S.C. § 1915(a).

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B.

Venue

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Additionally, upon initial review, the Court finds that Plaintiffs action appears to

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lack proper venue. Venue may be raised by a court sua sponte where the defendant has

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not yet filed a responsive pleading and the time for doing so has not run. Costlow v.

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Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986).
Section 1391(b) of Title 28 of the U.S. Code provides, in pertinent part, that a

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“civil action may be brought in-(l) a judicial district in which any defendant resides, if

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all defendants are residents of the State in which the district is located; [or] (2) a judicial

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district in which a substantial part of the events or omissions giving rise to the claim

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occurred, or a substantial part of property that is the subject of the action is situatedf.]”

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28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. Commonwealth

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Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). “The district court of a district in which is

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filed a case laying venue in the wrong division or district shall dismiss, or if it be in the

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interests of justice, transfer such case to any district or division in which it could have

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been brought.” 28 U.S.C. § 1406(a).

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3:17-cv-00082-BEN-MDD

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Plaintiff alleges that the substantial part of the events or omissions giving rise to

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his claims occurred at the U.S. Penitentiary located in Adelanto, California, which is

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located in San Bernardino County. See Doc. No. 1 at 1-2; 28 U.S.C. § 84(c)(1))

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(including San Bernardino County within the jurisdictional boundaries of the Central

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District of California). Thus, no claim is alleged to have arisen and no Defendant is

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alleged to reside in either San Diego or Imperial County. See Doc. No. 1 at 2; 28 U.S.C.

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§ 84(d) (“The Southern District comprises the counties of Imperial and San Diego.”).

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In short, the facts alleged in the Complaint indicate that venue is proper in the

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Central District of California pursuant to 28 U.S.C. § 84(c)(1), but not in the Southern

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District of California pursuant to 28 U.S.C. § 84(d). See 28 U.S.C. § 1391(b); Costlow,

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790 F.2d at 1488. As a result, the Court advises Plaintiff that if he decides to refile his

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action, his case should be filed in the Central District of California.
CONCLUSION & ORDER

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The Complaint is DISMISSED without prejudice for failing to pay the filing fee.

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IT IS SO ORDERED.

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DATED: February /^C-2017

RTBENlf^
HON
United States District Court Judge

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3:17-cv-00082-BEN-MDD