Lopez v. Madden

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADAM R. LOPEZ, Case No.: 17cv922 DMS (JLB)

12 Petitioner, ORDER DISMISSING CIVIL ACTION: 13 v. (1) FOR FAILING TO PAY FILING FEE 14 RAYMOND MADDEN (WARDEN) REQUIRED BY 28 U.S.C. § 1914(a) AND/OR FAILING TO MOVE TO 15 Respondent. PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) 16

17 AND

18 (2) FOR LACK OF SUBJECT MATTER JURISDICTION 19 20 21 Plaintiff, a prisoner currently incarcerated at Centinela State Prison and proceeding 22 pro se, has filed a “Petition for Writ of Mandate” pursuant to California Code of Civil 23 Procedure §§ 1085 and 1086, in which he seeks to compel the Warden at Centinela to 24 provide him with the rules and regulations concerning the use of the “Adani Full Body 25 Scanner” device. (See Pet. at 2.) 26 / / / 27 / / / 28 / / / 1 I. 2 Failure to Pay Filing Fee or Request IFP Status 3 All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $350. See 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay this 6 filing fee only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant 7 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 8 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 9 Here, Plaintiff has neither prepaid the $350 filing fee required to commence a civil 10 action, nor has he submitted a Motion to Proceed IFP. Therefore, this action is subject to 11 immediate dismissal pursuant to 28 U.S.C. § 1914(a). 12 II. 13 Sua Sponte Screening per 28 U.S.C. § 1915A(b)(1) 14 The Court further finds that even if Plaintiff had paid the full $350 filing fee or 15 moved to proceed IFP pursuant to 28 U.S.C. § 1915(a), his action nevertheless remains 16 subject to sua sponte dismissal under 28 U.S.C. § 1915A. This statute requires the court 17 to “review, before docketing, if feasible or, in any event, as soon as practicable after 18 docketing ... a civil action in which a prisoner seeks redress from a governmental entity or 19 officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). When conducting 20 this review, the court may dismiss the action, or any portion of it, if it “is frivolous, 21 malicious, or fails to state a claim upon which relief may be granted.” See 28 U.S.C. § 22 1915A(b)(1); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010); Resnick v. Hayes, 23 213 F.3d 443, 446-47 (9th Cir. 2000). 24 Here, Petitioner invokes jurisdiction under California Code of Civil Procedure §§ 25 1085 and 1086. There is no basis for federal subject matter jurisdiction under these state 26 statutes. Indeed, Petitioner fails to cite any federal law in support of his filing in this Court 27 or the relief he seeks. In the absence thereof, the Petition must be dismissed for lack of 28 subject matter jurisdiction. 1 III. 2 Conclusion and Order 3 For the reasons set forth above, the Court hereby: 4 (1) DISMISSES this action sua sponte for failing to pay the $350 filing fee or file 5 ||a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and 6 (2) DISMISSES this action for lack of subject matter jurisdiction. 7 The Clerk shall close the file. 8 IT IS SO ORDERED. 9 Dated: August 20, 2020 J 10 pr Yn « Hon. Dana M. Sabraw 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28