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Popescu v. California Department of Corrections and Rehabilitations

United States District Court, Ninth Circuit

September 4, 2013

VIRGIL POPESCU, Plaintiff,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATIONS, et al., Defendants.

ORDER: (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS (2) DISMISSING ACTION WITHOUT PREJUDICE [Docket No. 2]

ROGER T. BENITEZ, District Judge.

Plaintiff Virgil Popescu filed a Complaint against multiple defendants, including the California Department of Corrections and Rehabilitations. (Docket No. 1.) Plaintiff also filed a motion to proceed in forma pauperis ("IFP"). (Docket No. 2.)

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 only if the party is granted leave to proceed 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). Under 28 U.S.C. § 1915,

any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding... without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor.

28 U.S.C. § 1915(a)(1).

Here, Plaintiff states that he is not currently employed. (Mot. to Proceed IFP at 2.) However, Plaintiff receives a retirement pension of $1, 700 a month. ( Id. ) Accordingly, Plaintiff has not shown that he is unable to pay the filing fee. The motion to proceed IFP is DENIED. The action is DISMISSED without prejudice for failure to pay the $350 filing fee. Plaintiff is GRANTED thirty (30) days from the date of this Order to pay the $350 filing fee. If Plaintiff does not pay the $350 filing fee in full, this action shall remain closed without further Order of the Court.

IT IS SO ORDERED.


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