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Jose Gonzalez Garcia v. U.S. Border Patrol

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 17, 2011

JOSE GONZALEZ GARCIA,
PLAINTIFF,
v.
U.S. BORDER PATROL,
DEFENDANTS.

The opinion of the court was delivered by: Hon. John A. Houston United States District Judge

#92144-198

ORDER DISMISSING CIVIL ACTION WITHOUT PREJUDICE FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) AND/OR MCC MEDICAL STAFF; FAILING TO MOVE TO PROCEED INS; IN FORMA PAUPERIS PURSUANT TO FOR FAILING TO PAY 28 U.S.C. § 1915(a)

Plaintiff, a federal prisoner currently incarcerated at the Metropolitan Correctional Center in San Diego, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has neither prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a) to commence a civil action, nor filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a).

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 proceedIFP 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).

Because Plaintiff has not prepaid the $350 filing fee nor submitted a Motion to Proceed IFP, this civil action cannot proceed. Id.; 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 the Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b).*fn1

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 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.

IT IS SO ORDERED.


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