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Flynoind Demery v. William Gore; Bruce Leicht

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 4, 2011

FLYNOIND DEMERY,
PLAINTIFF,
v.
WILLIAM GORE; BRUCE LEICHT;
RN #6895; SAN DIEGO COUNTY
SHERIFF'S DEPARTMENT, DEFENDANTS.

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

ORDER DISMISSING CIVIL ACTION FOR FAILING TO PAY FILING FEES PURSUANT TO 28 U.S.C. § 1914(a) AND FOR FAILING TO MOVE IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a)

Plaintiff, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 27, 2011. Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); nor did he submit a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a).*fn1

I. FAILURE TO PAY FILING FEE OR REQUEST IFPSTATUS

Any party instituting a 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 $350. 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 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). As noted above, Plaintiff did not prepay the $350 filing fee required to commence a civil action; nor has he submitted a Motion to Proceed IFP in this Court. Therefore, the case must be dismissed 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. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIV LR. 3.2(b).

IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with the Court's 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.

IT IS SO ORDERED.


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