UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
December 17, 2012
JAIME G. SALDANA, #A073-818-147, PLAINTIFF,
CESAR R. FAVILA, ET AL.,
The opinion of the court was delivered by: Honorable Larry Alan Burns 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 PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a)
Plaintiff, who was detained at the Immigration and Customs Enforcement ("ICE") Processing Center in El Centro, but may have since been deported,*fn1 has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983.*fn2 Plaintiff also invokes federal question jurisdiction under 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). While far from clear, it appears Plaintiff claims several ICE officials violated his constitutional rights while he was in their custody pending deportation proceedings sometime between October 2011 and January 25, 2012. (Compl. at 1, 10-13.)
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).
Plaintiff has not prepaid the $350 filing fee required to commence a civil action pursuant to 28 U.S.C. § 1914(a). And, while Plaintiff claims, in his Complaint, that he has "no money," "no job," and "cannot pay the filing fee," (Compl. at 5), he has not filed a Motion to Proceed In Forma Pauperis, or the affidavit required to support such a Motion pursuant to 28 U.S.C. § 1915(a)(1). 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, if he was a "prisoner" as defined by 28 U.S.C. § 1915(h) at the time he filed his Complaint, a certified copy of his trust account statement for the 6-month period preceding the filing of this action. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b).*fn3
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. § 1915A(b) of all civil actions filed by prisoners "seek[ing] redress from a governmental entity or officer or employee of a governmental entity.").