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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t . FILES «eb~7 mmn 1 2 3 „ "V" 4 smmz 5 6 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 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, 12 vs. 13 14 15 VICTORVILLE USP PRISON, et al., Defendants. 16 17 18 Phillip Figures (“Plaintiff’), who is currently incarcerated at the U.S. Penitentiary 19 located in Adelanto, California, has filed a civil rights action. (Doc. No. 1.) Plaintiff 20 claims his constitutional rights were violated while housed at the Victorville U.S. 21 Penitentiary. See Doc. No. 1 at 1. 22 A. 23 Filing Fee All parties instituting any civil action in a district court must pay a filing fee. 28 24 U.S.C. § 1914(a). An action may proceed despite a plaintiffs failure to prepay the entire 25 fee only if the plaintiff is granted leave to proceed in forma pauperis (“IFP”) pursuant to 26 28 U.S.C. § 1915(a). 27 l 28 3:17-CV-00082-BEN-MDD Under 28 U.S.C. § 1915(a)(1), 1 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. 2 3 4 5 6 7 Plaintiff has not paid the filing fee or filed an application to proceed IFP. Accordingly, 8 Plaintiffs action is DISMISSED without prejudice. If Plaintiff decides to refile his 9 complaint, he must pay the filing fee or file an application to proceed IFP pursuant to 28 10 U.S.C. § 1915(a). 11 B. Venue 12 Additionally, upon initial review, the Court finds that Plaintiffs action appears to 13 lack proper venue. Venue may be raised by a court sua sponte where the defendant has 14 not yet filed a responsive pleading and the time for doing so has not run. Costlow v. 15 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 16 17 “civil action may be brought in-(l) a judicial district in which any defendant resides, if 18 all defendants are residents of the State in which the district is located; [or] (2) a judicial 19 district in which a substantial part of the events or omissions giving rise to the claim 20 occurred, or a substantial part of property that is the subject of the action is situatedf.]” 21 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. Commonwealth 22 Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). “The district court of a district in which is 23 filed a case laying venue in the wrong division or district shall dismiss, or if it be in the 24 interests of justice, transfer such case to any district or division in which it could have 25 been brought.” 28 U.S.C. § 1406(a). 26 III 27 2 28 3:17-cv-00082-BEN-MDD 1 Plaintiff alleges that the substantial part of the events or omissions giving rise to 2 his claims occurred at the U.S. Penitentiary located in Adelanto, California, which is 3 located in San Bernardino County. See Doc. No. 1 at 1-2; 28 U.S.C. § 84(c)(1)) 4 (including San Bernardino County within the jurisdictional boundaries of the Central 5 District of California). Thus, no claim is alleged to have arisen and no Defendant is 6 alleged to reside in either San Diego or Imperial County. See Doc. No. 1 at 2; 28 U.S.C. 7 § 84(d) (“The Southern District comprises the counties of Imperial and San Diego.”). 8 In short, the facts alleged in the Complaint indicate that venue is proper in the 9 Central District of California pursuant to 28 U.S.C. § 84(c)(1), but not in the Southern 10 District of California pursuant to 28 U.S.C. § 84(d). See 28 U.S.C. § 1391(b); Costlow, 11 790 F.2d at 1488. As a result, the Court advises Plaintiff that if he decides to refile his 12 action, his case should be filed in the Central District of California. CONCLUSION & ORDER 13 14 The Complaint is DISMISSED without prejudice for failing to pay the filing fee. 15 IT IS SO ORDERED. 16 17 18 a DATED: February /^C-2017 RTBENlf^ HON United States District Court Judge 19 20 21 22 23 24 25 26 27 3 28 3:17-cv-00082-BEN-MDD

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