United States District Court, S.D. California
December 7, 2005.
AARON D. JOHNSON, CDC #H-72354, Plaintiff,
JAMES E. HALL; G.J. GIURBINO; R.M. HOUSTON; DOES 1-100, Defendants.
The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
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)
Aaron D. Johnson ("Plaintiff"), a state inmate currently
incarcerated at Centinela State Prison ("CEN") in Imperial,
California and proceeding pro se, has filed a civil rights
Complaint pursuant to 42 U.S.C. § 1983.*fn1
that Defendants violated his Eighth Amendment rights on November
28, 2003 and November 29, 2003, by exposing him to OC (pepper) spray, and delaying medical care for eight hours
afterward. (See Compl. at 3-4.) Plaintiff seeks injunctive
relief as well as general and punitive damages. (Id. at 7.)
I. Failure to Pay Filing Fee or Request IFP Status
Effective February 7, 2005, 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 $250. See 28 U.S.C. § 1914(a). An action may proceed despite
a party's failure to pay only if 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.
Here, Plaintiff has neither prepaid the $250 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 $250 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 $250
civil filing fee in full; or (b) complete and file the attached
"Motion and Declaration in Support of Motion to Proceed In Forma
Pauperis" 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) and S.D.CAL. CIVLR
IT IS SO ORDERED.
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