Free Order Dismissing Case - District Court of California - California

Case 3:08-cv-01469-JLS-RBB

Document 2

Filed 08/18/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Plaintiff, a prisoner currently incarcerated at Richard J. Donovan Correctional Facility vs. J.D. COOK, Deputy Sheriff, Defendant. PATRICK ENDALE WOLDMSKEL, CDCR #F-64204, Plaintiff,
Civil No.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

08-1469 JLS (RBB)

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)

19 in San Diego California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 20 U.S.C. § 1983. 21 22 23 I. 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

24 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 25 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay this filing fee only if 26 the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). 27 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 28 1176, 1177 (9th Cir. 1999).
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08cv1469

Case 3:08-cv-01469-JLS-RBB

Document 2

Filed 08/18/2008

Page 2 of 2

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Plaintiff has neither prepaid the $350 filing fee required to commence a civil action, nor

2 has submitted a Motion to Proceed IFP. Therefore, this case is subject to immediate dismissal 3 pursuant to 28 U.S.C. § 1914(a).1 4 5 6 7 II. CONCLUSION AND ORDER For the reasons set forth above, the Court hereby: (1) DISMISSES this action sua sponte without prejudice for failing to pay the $350

8 filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and 9 (2) GRANTS Plaintiff forty five (45) days leave from the date this Order is "Filed"

10 to: (a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion to proceed 11 IFP which includes a certified copy of his trust account statement for the 6-month period 12 preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 13 3.2(b). 14 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with the 15 Court's approved form "Motion and Declaration in Support of Motion to Proceed In Forma 16 Pauperis." If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the 17 enclosed Motion to Proceed IFP within 45 days, this action shall remain dismissed without 18 prejudice and without further Order of the Court. 19 20 21 22 23 24 25 26 27 28
Plaintiff is cautioned that should he elect to proceed further with this matter, his case will be immediately subject to sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious or fails to state a claim); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (discussing sua sponte screening required by 28 U.S.C.§ 1915A(b)). If Plaintiff's Complaint is dismissed for the reasons set out in these statutes, the dismissal may be counted as a "strike" against him if he requests to proceed IFP in any future civil action filed while he is incarcerated. See Andrews, 493 F.3d at 1052 (under the Prison Litigation Reform Act, "[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP status under the three strikes rule[.]").
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DATED: August 18, 2008 Honorable Janis L. Sammartino United States District Judge

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08cv1469