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Cabrera-Alejandre v. U.S.A; Fred Lawrence

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 29, 2009

MANUEL CABRERA-ALEJANDRE, BOP #09376-097, PLAINTIFF,
v.
U.S.A; FRED LAWRENCE, CEO/WARDEN; DAVID LUSCHE, LIEUTENANT; JOHN DOES 1-5; JANE DOES 1-5; LINDSTEDT, HEALTH SERVICES ADMINISTRATOR; SORIA QUAWITY, ASSOC. HEALTH SERVICE ADMINISTRATOR; R. MURRELL, GRIEVANCE COMMITTEE MEMBER; M. LAKE, GRIEVANCE COMMITTEE MEMBER; S. SORIA, GRIEVANCE COMMITTEE MEMBER; RIVERA, SUPERVISOR OF UNIT B/G, DEFENDANTS.

The opinion of the court was delivered by: William Q. Hayes United States District Judge

ORDER DISMISSING CIVIL ACTION WITHOUT PREJUDICE 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)

FOR FAILING TO PAY

Plaintiff, a federal inmate currently incarcerated at the Federal Correctional Complex in Petersburg, Virginia and proceeding pro se, has filed a civil action pursuant to Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 338 (1971) and the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.*fn1 Plaintiff claims Defendants acted with deliberate indifference to his serious medical needs while he was detained in the San Diego Correctional Facility from July 2007 through February 2008. (Compl. ¶ 25.) Plaintiff seeks compensatory and punitive damages as well as attorney's fees. (Id. ¶¶ 39, 46.)

I.

Failure to Pay Filing Fee or Request IFP Status All parties instituting any civil action, suit or proceeding in any 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 not prepaid the $350 filing fee required to commence a civil action, nor has he submitted a Motion to Proceed IFP. Therefore, the case must be dismissed pursuant to 28 U.S.C. § 1914(a). Id.

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. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b).*fn2

IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with this 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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