Lucena- House of Yanos v. Rosen et al

Filing 3

DEFICIENCY ORDER re 1 Notice of Distress filed by Lucena- House of Yanos. Signed by JUDGE DERRICK K. WATSON on 9/26/2016. 1. The Clerk of Court is DIRECTED to send Plaintiff a copy of this Order and the Court's Applic ation to Proceed in forma pauperis with the accompanying information sheet. 2. Plaintiff is GRANTED until October 21, 2016 to (a) pay the filing fee; (b) file a Notice of Withdrawal of this action and obtain reimbursement of the $46 from t he Clerks Office; or (c) submit acompleted and executed application to proceed in forma pauperis onthe form provided by the court with this Order. The application mustbear the docket number (that is, Civil No. 16-00528 DKW-KJM)assigned to this case.< BR> 3. Failure to timely file an in forma pauperis application, file a Notice of Withdrawal, or to pay the statutory filing fee ($354) by October 21, 2016 will result in AUTOMATIC DISMISSAL of this action. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

LUCENA – HOUSE OF YANOS,

CIV. NO. 16-00528 DKW-KJM
[formerly MC 16-000263 DKW-KJM]

Plaintiff,
DEFICIENCY ORDER
vs.
DAVID B. ROSEN, et al.,
Defendants.

DEFICIENCY ORDER
Plaintiff Lucinda - House of Yanos, (“Plaintiff”), proceeding pro se, filed a
new action entitled “Notice of Distress” on September 22, 2016. Because the
notice is not part of an ongoing case, it was filed as a miscellaneous case and
Plaintiff paid the $46 filing fee. The court has converted the miscellaneous case to
a civil case. The new case number is Civ. No. 16-00528 DKW-KJM. All future
filings shall reflect the new case number.
All parties instituting any civil action, suit or proceeding in a United States
district court, other than a writ of habeas corpus, must pay a filing fee of $400.00.

See 28 U.S.C. § 1914(a). Due to the prior payment of a $46 miscellaneous filing
fee, Plaintiff’s balance due for the civil filing fee is $354.
Plaintiff has 30 days to submit the balance due or an application to proceed
in forma pauperis (“IFP”). An action may only proceed without prepayment of the
filing fee if a party is granted leave to proceed IFP. 28 U.S.C. § 1915(a);
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
Plaintiff must either pay the statutory filing fee or submit a fully-completed
and executed IFP application by October 21, 2016. Failure to do so will result in
AUTOMATIC DISMISSAL of this action for failure to prosecute or otherwise
follow a court order. See Fed. R. Civ. P. 41(b); Olivares v. Marshall, 59 F.3d 109,
112 (9th Cir. 1995) (stating that the district court has authority to dismiss the
complaint for failure to pay partial filing fee); In re Perroton, 958 F.2d 889, 890
(9th Cir. 1992) (affirming dismissal of appeal of pro se litigant for failure to pay
required filing fees). Alternatively, Plaintiff may file a Notice of Withdrawal of
this action and obtain reimbursement of the $46 from the Clerk’s Office, which
will terminate this action.
In determining whether to proceed in this action, Plaintiff should take heed
that the Notice of Distress is deficient on its face for several reasons, which she
may not be able to overcome. If Plaintiff chooses to proceed in this action, she
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must provide a basis for the court’s subject matter jurisdiction. See 28 U.S.C.
§§ 1331 (federal question), 1332 (diversity of citizenship).
Further, even if Plaintiff could establish the court’s jurisdiction, she does not
appear to be asserting any claim for which this court could provide relief. See
Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court
may dismiss a claim sua sponte under [Rule] 12(b)(6). Such a dismissal may be
made without notice where the claimant cannot possibly win relief.”). Private
individuals have no authority to issue a criminal indictment for violation of 18
U.S.C. § 241 or any other criminal statute, nor does the court have jurisdiction to
hear allegations of criminal conduct that are brought by anyone other than the
United States. See, e.g., United States v. Nixon, 418 U.S. 683, 693 (1974) (noting
that the executive branch has exclusive authority to decide whether to prosecute a
case).
IT IS HEREBY ORDERED that:
1.

The Clerk of Court is DIRECTED to send Plaintiff a copy of this
Order and the Court’s Application to Proceed in forma pauperis with
the accompanying information sheet.

2.

Plaintiff is GRANTED until October 21, 2016 to (a) pay the filing
fee; (b) file a Notice of Withdrawal of this action and obtain
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reimbursement of the $46 from the Clerk’s Office; or (c) submit a
completed and executed application to proceed in forma pauperis on
the form provided by the court with this Order. The application must
bear the docket number (that is, Civil No. 16-00528 DKW-KJM)
assigned to this case.
3.

Failure to timely file an in forma pauperis application, file a Notice of
Withdrawal, or to pay the statutory filing fee ($354) by October 21,
2016 will result in AUTOMATIC DISMISSAL of this action.
IT IS SO ORDERED.
DATED: September 26, 2016 at Honolulu, Hawai’i.

Lucena – House of Yanos v. Rosen et al., CV. 16-00528 DKW-KJM;
DEFICIENCY ORDER

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