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Walker v. Hubert

United States District Court, S.D. California

April 10, 2014

JEFF E. WALKER, CDCR #F-11343, Plaintiff,
v.
C/O HUBERT; C/O MOORE; SGT. LUNA; LT. ACUNA; C/O LABACO; C/O MURPHY; NURSE DONOHUE; JOHN AND JANE DOES, Defendants.

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)

BARRY TED MOSKOWITZ, Chief District Judge.

Plaintiff, currently incarcerated at the Richard J. Donovan Correctional Facility located in San Diego, California, and proceeding pro se, has filed a civil action pursuant to 42 U.S.C. § 1983, along with a Motion entitled "Request TRO/Injunction under Imminent Danger' Expedite due to Life in Danger in this Prison." (ECF Doc. Nos. 1, 2.)

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).[1] 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. Motion for Temporary Restraining Order

At this time, the Court will defer ruling on Plaintiff's Motion for Temporary Restraining Order. If Plaintiff pays the filing fee or properly files a Motion to Proceed IFP, the Court will rule on Plaintiff's Motion. The actions complained of in Plaintiff's Complaint are alleged to have occurred in January of 2014 but the Motion fails to clearly articulate what the current "imminent danger" Plaintiff is facing.

In addition, the Court takes judicial notice that Plaintiff has filed seventeen civil rights actions since 2008 in the Central, Eastern and Northern Districts of California. A court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.'" Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). If Plaintiff chooses to file a Motion to Proceed IFP, he may be barred by 28 U.S.C. § 1915(g).

III. 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).

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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