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Turner v. County of San Diego

United States District Court, Ninth Circuit

September 27, 2013

DAVID B. TURNER, Jr., Booking, Plaintiff,
v.
COUNTY OF SAN DIEGO, Public Defenders, et al., Defendants. No. 13719099.

ORDER DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILING TO PAY FILING FEES 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)

LARRY ALAN BURNS, District Judge.

David B. Turner ("Plaintiff"), currently incarcerated at George Bailey Detention Facility (GBDF) in San Diego, California, and proceeding pro se, has initiated this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF Doc. No. 1).

Plaintiff alleges the County of San Diego, its Public Defenders' Office, one of his appointed defenders, and "San Diego Probation, " violated his Sixth Amendment right to effective assistance of counsel, due process, and the Eighth Amendment during San Diego County Superior Court criminal proceedings held in May 2013. (Compl. at 1-5.) Specifically, Plaintiff alleges the Public Defenders' Office had a "conflict of interest, " and his appointed counsel failed to timely provide him with discovery, refused to withdraw his plea, and "told [him] the deal was probation, " yet he was sentenced to a 3-year term. ( Id. at 3-5.) Plaintiff seeks compensatory and punitive damages.[1] ( Id. at 7.)

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 $400. See 28 U.S.C. § 1914(a).[2] 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 $400 in filing and administrative fees 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 case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051.

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 $400 civil filing and administrative fee or submit 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 $400 civil filing and administrative 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).[3]

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 $400 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.


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