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JOHNSON v. HUNTER

United States District Court, N.D. California


June 21, 2004.

JOSEPH JOHNSON, JR., Petitioner,
v.
MELVIN HUNTER, Respondent.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT

The action is dismissed without prejudice to petitioner filing a new action for which he pays the filing fee or submit a completed in forma pauperis application.

IT IS SO ORDERED AND ADJUDGED. ORDER OF DISMISSAL

  This pro se habeas action was filed on February 25, 2004. On that date, the court notified petitioner in writing that the action was deficient due to the failure to pay the filing fee or furnish a completed and signed Court-approved in forma pauperis application. Petitioner was advised that failure to pay the fee or file the application within thirty days would result in dismissal of the action. Petitioner has failed to timely provide the Court with either the filing fee or a completed in forma pauperis application.

  Petitioner, in custody awaiting civil commitment proceedings under California's Sexually Violent Predators Act ("SVPA"), asserted that he was not a not a prisoner and therefore was not covered by the Prison Litigation Reform Act ("PLRA"). Even though a person in custody under the SVPA is not be covered by the PLRA, he still must file an application and affidavit of his finances so the court can determine whether he is a pauper and should be allowed to proceed in forma pauperis. Petitioner did not do so. The cases cited by petitioner do not stand for the proposition that persons committed or awaiting commitment under the SVPA have an automatic right to proceed in forma pauperis without any inquiry into their financial wherewithal. A person in custody pursuant to a civil commitment or awaiting a civil commitment may be able to avoid the installment payment plan required under 28 U.S.C. § 1915(b) — although the court could still order a partial payment plan under appropriate circumstances — but that does not free him from all obligation to provide financial information. Even persons who are not subject to any sort of custody must provide a financial affidavit under the Local Rules of this court. See also 28 U.S.C. § 1915(a)(1).

  The action is DISMISSED without prejudice for failure to pay the filing fee or submit any completed in forma pauperis application. Petitioner may file a new action, but should include a filing fee or an in forma pauperis application with a petition for writ of habeas corpus to commence that new action. Because this action is now being dismissed, petitioner should not file an in forma pauperis application or pay the filing fee in this action. The Clerk shall close the file.

 

IT IS SO ORDERED.
20040621

© 1992-2004 VersusLaw Inc.



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