Ware v. Unknown Richard J. Donovan Correctional Facility Officers

Filing 4

ORDER DISMISSING Civil Action without Prejudice for Failing to Pay filing Fee and/or Failing to Move to Proceed in Forma Pauperis. Plaintiff is granted 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 Gonzalo P. Curiel on 8/15/2017.(Sent IFP form to Plaintiff) (All non-registered users served via U.S. Mail Service)(knb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 3:17-cv-01598-GPC-PCL MARTIN WARE H-13103, 13 14 15 16 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) Plaintiff, v. UNKNOWN RICHARD J. DONOVAN CORRECTIONAL OFFICERS, Defendant. 17 18 19 20 MARTIN WARE (“Plaintiff”), currently incarcerated at California State Prison - 21 Los Angeles County located in Lancaster, California, and proceeding pro se, has filed a 22 civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). 23 I. 24 25 Failure to Pay Filing Fee or Request IFP Status All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of 26 27 1 3:17-cv-01598-GPC-PCL 1 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the Plaintiff is a prisoner, and 5 even if he is granted leave to commence his suit IFP, he remains obligated to pay the 6 entire filing fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 7 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) 8 & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Plaintiff has not prepaid the $400 in filing and administrative fees required to 10 commence this civil action, nor has he submitted a properly supported Motion to Proceed 11 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 12 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 13 II. Conclusion and Order 14 For the reasons set forth above, the Court hereby: 15 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 16 $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 17 28 U.S.C. §§ 1914(a) and 1915(a); and 18 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 19 filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) 20 complete and file a Motion to Proceed IFP which includes a certified copy of his trust 21 account statement for the 6-month period preceding the filing of his Complaint. See 28 22 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). 23 24 25 26 27 1 In addition to the $350 statutory fee, civil litigants 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, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:17-cv-01598-GPC-PCL 1 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 or 4 complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will 5 remain dismissed without prejudice based on Plaintiff’s failure to satisfy 28 U.S.C. 6 § 1914(a)’s fee requirements and without further Order of the Court. 7 IT IS SO ORDERED. 8 9 Dated: August 15, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 3:17-cv-01598-GPC-PCL

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