Jones v. Tiscornia

Filing 3

ORDER DISMISSING CASE Sua Sponte without prejudice for failing to pay the filing fee or file a Motion to Proceed IFP. 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. Signed by Judge Roger T. Benitez on 8/28/2017.(Sent IFP form to Plaintiff) (All non-registered users served via U.S. Mail Service)(knb)

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'"' 1 1 ,......, .V) •··· I 1 I._ r....... 2 ~AUG 3 29 AH (01 10 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GARLAND AARON JONES, Case No.: 3:17-cv-01592-BEN- AGS Plaintiff, 12 13 v. 14 MRS. TISCORNIA, Librarian, Defendant. 15 16 17 18 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 FILE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) GARLAND AARON JONES ("Plaintiff'), currently incarcerated at Richard J. 19 Donovan Correctional Facility located in San Diego, California, and proceeding prose, 20 has filed a civil rights complaint ("Compl.") pursuant to 42 U.S.C. § 1983 (ECF No. 1). 21 I. Failure to Pay Filing Fee or Request IFP Status 22 All parties instituting any civil action, suit or proceeding in a district court of the 23 United States, except an application for writ of habeas corpus, must pay a filing fee of 24 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiffs failure to 25 prepay the entire fee only if he is granted leave to proceed in forma pauperis ("IFP") 26 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th 27 Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 28 Plaintiff is a prisoner, and even if he is granted leave to commence his suit IFP, he 3:17-cv-01592-BEN-AGS cl · 1 remains obligated to pay the entire filing fee in "increments," see Williams v. Paramo, 2 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 3 dismissed. See 28 U.S.C. § 1915(b)(l) & (2); Taylor v. Delatoore, 281F.3d844, 847 4 (9th Cir. 2002). 5 Plaintiff has not prepaid the $400 in filing and administrative fees required to 6 commence this civil action, nor has he submitted a properly supported Motion to Proceed 7 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 8 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 9 II. Conclusion and Order 10 For the reasons set forth above, the Court hereby: 11 ( 1) DIS MISSES this action sua sponte without prejudice for failure to pay the 12 $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 13 28 U.S.C. §§ 1914(a) and 1915(a); and 14 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 15 filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) 16 complete and file a Motion to Proceed IFP which includes a certified copy of his trust 17 account statement for the 6-month period preceding the filing of his Complaint. See 28 18 U.S.C. § 1915(a)(2); S.D. Cal. CivLR3.2(b). 19 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 20 with this Court's approved form "Motion and Declaration in Support of Motion to 21 Proceed In Forma Pauperis." If Plaintiff fails to either prepay the $400 civil filing fee or 22 complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will 23 remain dismissed without prejudice based on Plaintiffs failure to satisfy 28 U.S.C. § 24 the Court. 25 26 EZ 27 28 2 3:17-cv-01592-BEN-AGS

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