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Cornelius anderson,Cdcr #T-71542 v. Capt. Witman; Warden Jana

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 25, 2013

CORNELIUS ANDERSON,CDCR #T-71542, PLAINTIFF,
v.
CAPT. WITMAN; WARDEN JANA, DEFENDANTS.

The opinion of the court was delivered by: Hon. Michael M. Anello 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 CALIPATRIA UCC CLASSIFICATION; IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) FOR FAILING TO PAY

Cornelius Anderson ("Plaintiff"), currently incarcerated at Calipatria State Prison and proceeding pro se, has filed a document entitled "Pro Se Application for Temporary Restraining Order [and] Warrant to Stop a[] Transfer," in which he claims Defendants are "forcing" his transfer to another prison in order to retaliate against him for filing a habeas corpus petition in Anderson v. Foster, S.D. Cal. Civil Case No. 11cv0661 MMA (DHB).

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, nor has he submitted a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). Therefore, the action cannot yet proceed. 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).*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 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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