Free Order Dismissing Case - District Court of California - California

Case 3:08-cv-00075-DMS-NLS

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Filed 01/15/2008

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA


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1111 IRWIN SHAYLOR BOOKHART,

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CDCR #V-15388 Plaintiff, vs. K. WARNKE; Chula Vista Police Office Badge #960; GARDNER; Chula Vista Police Officer; CHULA VISTA CITY JAIL, Defendants.

Civil No.

08-0075 DMS (NLS)

ORDER DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILING TO PAY FILING FEES PURSUANT TO 28 U.S.C. § 1914(a) AND/OR MOVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a)

Irwin Shaylor Bookhart ("Plaintiff"), a state prisoner currently incarcerated at Richard
1. Donovan Correctional Facility in San Diego, California, and proceeding pro se, has filed a

civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims two City of Chula Vista Police Officers violated his right to be free from cruel and unusual punishment in November 2007 while he was detained in the Chula Vista City Jail. (Compl. at 1-5.) Plaintiff seeks injunctive relief prohibiting the Defendants "from contact" as well as $100,000 in general and punitive damages. (Id. at 7.) /// ///
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08cv0075

Case 3:08-cv-00075-DMS-NLS

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211 FAILURE TO PAY FILING FEE OR REQUEST IFP STATUS

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Effective April 9, 2006, all parties instituting any civil action, suit or proceeding in a

4 II district court of the United States, except an application for writ of habeas corpus, must pay a 5 II filing fee of$350. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to 6 II pay only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a).

See

7 II Andrews v. Cervantes, 493 F.3d l047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 8 II 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, remain obligated to pay 9 II the entire fee in installments, regardless of whether the action is ultimately dismissed for any 10 II reason. See 28 U.S.C. § 1915(b)(l) & (2). 11 II Here, Plaintiff has neither prepaid the $350 filing fee required to commence this action,

12 II nor has he submitted a Motion to Proceed IFP. Therefore, this action is subject to immediate 13 II dismissal pursuant to 28 U.S.c. § 1914(a). 14 15 16 17 II

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

18 II filing fee or file a Nlotion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and 19 II (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is stamped

20 /I "Filed" to: (a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion 21 II to proceed IFP which includes a certified copy of his trust account statement for the 6-month 2211 period preceding the filing of his Complaint pursuant to 28 U.S.C. § 19l5(a)(2). 23 II
IT IS FURTHER ORDERED that the Clerk ofthe Court shall provide Plaintiffwith the

24 II Court's approved form "Motion and Declaration in Support of Motion to Proceed In Forma 25 II Pauperis." If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the 26 27 /// ///

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Case 3:08-cv-00075-DMS-NLS

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1 II attached Motion to Proceed IFP within that time, this action shall remain dismissed without 2 II prejudice and without further Order of the Court. 1
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IT IS SO ORDERED.

5 DATED:
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1_'...L..15~,_()-=-'

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HON. DANA M. SABRAW United States District Judge

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I Plaintiffis cautioned that ifhe chooses to proceed with this action either by paying the full civil 23 II filing fee required by 28 U.S.C. § 1914(a), or moving to proceed IFP, his Complaint will be subject to the mandatory screening and sua sponte dismissal provisions of28 U.S.c. § 1915A(b) and 28 U.S.C. 24 II § 1915(e)(2)(b). 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 informapauperis 25 II complaint that fails to state a claim); see also Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (discussing sua sponte screening required by 28 U.S.c.§ 1915A(b)). Plaintiff is further cautioned that 26 II once he accumulates three dismissals which qualify as "strikes" under 28 U.S.C. § 1915(g), he will be precluded from proceeding in forma pauperis in the future unless he is in "imminent danger of serious 27 II physical injury." See Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005)("Pursuant to § 1915(g), a prisoner with three strikes," i. e_, prior federal cases or appeals, brought while the plaintiff was a 28 II prisoner, which were dismissed on grounds that they were frivolous, malicious, or failed to state a claim, "cannot proceed IFP.").

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