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O'Hines v. Ontiveros

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 21, 2008

JAMES LYNN O'HINES, CDCR #K-86989, ADC #197067, PLAINTIFF,
v.
JOHN ONTIVEROS, WARDEN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

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 PURSUANT TO 28 U.S.C. § 1915(a) PROCEED IN FORMA PAUPERIS

Plaintiff, an inmate currently incarcerated at the Arizona State Prison Complex in Florence, Arizona, and proceeding pro se, has filed a civil action which is entitled a "Coram Nobis Appeal" but which invokes federal jurisdiction pursuant to 28 U.S.C. § 1332 (diversity of citizenship), 28 U.S.C. § 1655 (lien enforcement); 18 U.S.C. § 1201 (kidnaping), 42 U.S.C. § 2000c (Department of Education Organization Act), 28 U.S.C. § 1738A (full faith and credit given to child custody determinations), 42 U.S.C. §§ 654, 655, 663 (Title IV-D of the Social Security Act) and the "Model Penal Code § 210.1 (1977)".*fn1 (Compl. at 1.)

While the exact nature of Plaintiff's claims is far from clear, he seeks an injunction preventing defendants, who appear to be prison officials in California, Arizona, and Tijuana, Mexico, from "further custodial prosecutions" and from "impos[ing] draconian punishments for racial, religious, [and] sexual discrimination." (Id. at 7.)

I. 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 States, except an application for 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 this filing fee only if the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a).

See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

Here, Plaintiff has neither prepaid the $350 filing fee required to commence a civil action, nor has submitted a Motion to Proceed IFP. Therefore, this case 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 "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) and S.D. CAL. CIVLR 3.2(b).

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 enclosed Motion to Proceed IFP within that time, this action shall remain dismissed without prejudice and without further Order of the Court.


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