Free Order Dismissing Case - District Court of California - California

Case 3:08-cv-01335-IEG-PCL

Document 2

Filed 08/04/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Plaintiff, an inmate currently incarcerated at the Arizona State Prison Complex in Defendants. vs. ONTIVEROS, Warden, et al., JAMES LYNN O'HINES, CDCR #K-86989, ADC #197067, Plaintiff, 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)
Civil No.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

08-1335 IEG (PCL)

21 Florence, Arizona, and proceeding pro se, has filed a civil action entitled "Living Wills, Trust, 22 Probate" pursuant to 18 U.S.C. § 2385, a federal statute which criminalizes the knowing, willful 23 or intentional overthrow of Government. (See Compl. at 1.) 24 I. 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

26 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 27 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay this filing fee only if 28 the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a).
-108cv1335

Case 3:08-cv-01335-IEG-PCL

Document 2

Filed 08/04/2008

Page 2 of 2

1 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 2 1176, 1177 (9th Cir. 1999). 3 Here, Plaintiff has neither prepaid the $350 filing fee required to commence a civil action,

4 nor has submitted a Motion to Proceed IFP. Therefore, this case is subject to immediate 5 dismissal pursuant to 28 U.S.C. § 1914(a).1 6 II. 7 8 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

9 filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and 10 (2) GRANTS Plaintiff forty five (45) days leave from the date this Order is "Filed"

11 to: (a) prepay the entire $350 civil filing fee in full; or (b) complete and file a Motion to proceed 12 IFP which includes a certified copy of his trust account statement for the 6-month period 13 preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 14 3.2(b). 15 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with the

16 Court's approved form "Motion and Declaration in Support of Motion to Proceed In Forma 17 Pauperis." If Plaintiff fails to either prepay the $350 civil filing fee or complete and submit the 18 enclosed Motion to Proceed IFP within that time, this action shall remain dismissed without 19 prejudice and without further Order of the Court. 20 DATED: August 4, 2008 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 and dismissal 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)). Moreover, such a dismissal may be counted as a "strike" against Plaintiff if he requests IFP status 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[.]"). -208cv1335
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IRMA E. GONZALEZ, Chief Judge United States District Court