Free Order Dismissing Case - District Court of California - California

Case 3:08-cv-00043-JAH-LSP

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Filed 01/11/2008

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

LEE FOY, CDCR #C-01539, Plaintiff, vs. MARISOIL, Nurse, Defendant.

Civil No.

08-0043 JAH (LSP)

ORDER DISMISSING CASE 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)

Lee Foy ("Plaintiff"), a state prisoner currently incarcerated at the Richard J. Donovan Correctional Facility located in San Diego, California, and proceeding pro se, initially filed this civil rights action pursuant to 42 U.S.C. § 1983 in the Eastern District of California. United States Magistrate Judge Dale Drozd determined that the named Defendant resides and the claims arose in the County of San Diego. Thus, this matter was transferred to the Southern District of California on January 3, 2008. I. Failure to Pay Filing Fee or Request IFP Status Effective April 9, 2006, all parties instituting any civil action, suit or proceeding in a district court of the United States, other than a writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay only if
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Case 3:08-cv-00043-JAH-LSP

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Filed 01/11/2008

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the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Here, Plaintiff has neither prepaid the $350 filing fee required to commence this action, nor has he submitted a Motion to Proceed IFP. Therefore, this action is subject to immediate dismissal pursuant to 28 U.S.C. § 1914(a). 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

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

"Filed" to: (a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion to proceed IFP which includes a certified copy of his trust account statement for the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2). IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with the Court's approved form "Motion and Declaration in Support of Motion to Proceed In Forma Pauperis." If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the attached Motion to Proceed IFP within that time, this action shall remain dismissed without prejudice and without further Order of the Court. IT IS SO ORDERED.
DATED: January 11, 2008

JOHN A. HOUSTON United States District Judge

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