Opinion
Civil No. 05-1557 JAH (WMc).
December 7, 2005
Aaron D. Johnson ("Plaintiff"), a state inmate currently incarcerated at Centinela State Prison ("CEN") in Imperial, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants violated his Eighth Amendment rights on November 28, 2003 and November 29, 2003, by exposing him to OC (pepper) spray, and delaying medical care for eight hours afterward. ( See Compl. at 3-4.) Plaintiff seeks injunctive relief as well as general and punitive damages. ( Id. at 7.)
Magistrate Judge Referral per S.D.CAL.CIVLR 72.3: The proceedings were assigned to this Court, but have been referred to the Honorable William McCurine, Jr., United States Magistrate Judge, by Local Rule 72.3(e), "Assignment of § 1983 Prisoner Civil Cases to United States Magistrate Judges," and pursuant to 28 U.S.C. § 636. Plaintiff has clearly and unambiguously consented to magistrate judge jurisdiction. ( See Compl. at 7). However, unless all Defendants also consent to magistrate judge jurisdiction in the event they are served and make their first appearance per S.D. CAL. CIVLR 72.3(d), Magistrate Judge McCurine will conduct all necessary post-service hearings and submit proposed findings of fact and recommendations for the disposition of all motions in this matter excluded from magistrate judge jurisdiction by 28 U.S.C. § 636(b)(1)(a). See Aldrich v. Bowen, 130 F.3d 1364, 1365 (9th Cir. 1997) and Nasca v. Peoplesoft, 160 F.3d 578, 580 (9th Cir. 1999) (both holding that magistrate judge has no jurisdiction to hear case when record contains no clear and unambiguous consent of all parties); see also FED.R.CIV.P. 73(b); 28 U.S.C. § 636(c)(1).
I. Failure to Pay Filing Fee or Request IFP Status
Effective February 7, 2005, all parties instituting any civil action, suit or proceeding in a district court of the United States, other than a writ of habeas corpus, must pay a filing fee of $250. 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 in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
Here, Plaintiff has neither prepaid the $250 filing fee required to commence this action, nor has he submitted a Motion to Proceed IFP. Therefore, this action is subject to immediate dismissal pursuant to 28 U.S.C. § 1914(a).
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 $250 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 stamped "Filed" to: (a) prepay the entire $250 civil filing fee in full; or (b) complete and file the attached "Motion and Declaration in Support of Motion to Proceed In Forma Pauperis" which includes a certified copy of his trust account statement for the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D.CAL. CIVLR 3.2(b).
IT IS SO ORDERED.