Koresko v. Cook

Opinion

EASTERN DISTRICT OF CALIFORNIA

JOHN J. KORESKO, ) Case No.: 1:21-cv-01432 - JLT ) Plaintiff, ) ORDER DIRECTING PLAINTIFF TO PAY THE v. ) FILING FEE OR FILE A MOTION TO PROCEED ) IN FORMA PAUPERIS TURHAN COOK, et al., ) ) Defendant. ) )

Plaintiff initiated an action by filing a complaint on September 27, 2021. However, Plaintiff did not pay the filing fee or file a motion to proceed in forma pauperis. As a general rule, all parties instituting any civil action, suit or proceeding in a United States District Court must pay a filing fee. 28 U.S.C. § 1915(a). However, the Court may authorize the commencement of an action without the filing fee “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 therefore.” 28 U.S.C. § 1915(a)(1). Therefore, an action may proceed despite a failure to prepay the filing fee only if leave to proceed in forma pauperis is granted by the Court. See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The Court notes that at the time Plaintiff filed his complaint, he submitted informal correspondence, which included bank statements and personal checks with account numbers. These documents were not submitted with an affidavit under penalty of perjury and cannot be considered a request to proceed in forma pauperis. The documents will be returned to Plaintiff due to the personal identification information included in the financial records. Because Plaintiff failed to pay the requisite filing fee or to file an affidavit concerning his finances under oath with a request to proceed in forma pauperis, the matter cannot proceed before the Court at this time. Accordingly, the Court ORDERS: 1. Plaintiff SHALL pay the filing fee within 21 days of service of this order, or 2. In the alternative, Plaintiff SHALL file a motion to proceed in forma pauperis within 21 days of service. 3. The Clerk of Court is directed to return the documents previously submitted and provide a copy of the Court’s application form for parties to proceed in forma pauperis; Plaintiff is advised that failure to comply with this order may result in dismissal of this action pursuant to Local Rule 110.

Dated: October 1, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE