United States District Court, N.D. California
June 21, 2004.
JOSEPH JOHNSON, JR., Petitioner,
MELVIN HUNTER, Respondent.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
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
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.
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