Johnson v. Dept of Corrections, et al

Filing 14

MEMORANDUM DECISION and ORDER Denying 13 Plaintiff's Motion to be Awarded Costs and Fees, signed by Judge Oliver W. Wanger on 9/18/2009. (Verduzco, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 GEORGE GALAZA, et al., 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants. vs. Plaintiff, DAVID JOHNSON, JR., ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-97-6173 OWW/HGB P MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO BE AWARDED COSTS AND FEES (Doc. 13) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

On December 2, 1997, Plaintiff David Johnson, Jr., a state prisoner proceeding in pro per, filed an action against the California Department of Corrections, and George Galaza pursuant to 42 U.S.C. § 1983. By Order filed on January 28, 1998, Plaintiff

Plaintiff was required to pay a $150.00 filing fee.

filed a First Amended Complaint against these defendants on April 7, 1998, alleging: George M. Galaza with knowledge of, knowingly deprived plaintiff of procedural due process relied upon to ensure equal protection of plaintiff's vested rights to: freedom from secondary smoke and access to courts. George 1

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M. Galaza with knowledge the [sic] herein acts complained of at the time the acts were committed knowingly affirmed temporary deprivation of plaintiff's rights, privileges, and immunities secured by the US Const. 14 amend. And [sic] US laws, while in his official capacity as a warden. On January 8, 1999, United States Magistrate Judge Beck filed Findings and Recommendations that this action be dismissed for failure to state a claim upon which relief can be granted. 10). Plaintiff did not file objections to the Findings and By Order filed on March 16, 1999, the Court (Doc.

Recommendation.

adopted the Findings and Recommendation and dismissed the action. (Doc. 11). 1999. Judgment for Defendants was entered on March 17,

Plaintiff did not file a Notice of Appeal.

On December 8, 2008, Plaintiff, again proceeding in pro per, filed a "Motion To Be Awarded Court Fees and Costs." Petitioner's motion asserts: Problem (3) Jan. 28, 98, the court issued `Order for Payment of Inmate Filing Fee .... (4) Petitioners [sic] cause of action has prevailed, petitioner sought damages including Court Cost. (5) Nov. 23, 2008, CDC issued a trust statement with $150.00 hold by U.S. Eastern District .... Action Requested (Doc. 13).

23 24 25 26 (6) all the any After the July 1, 2005 decision banning smoking and tobacco products in C.D.C. court failed to waive the hold or award damages.

(7) Petitioner requests clerk of court award 2

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petitioner cost $150.00 [sic]. (8) Petitioner requests clerk of court the [sic] forms needed, such as an `Application For Waiver Of Fee and Cost' [sic] or, Whatever terms the court deems proper. Plaintiff's motion is DENIED. Plaintiff did not prevail in

5 this action and Judgment was entered against him and in favor of 6 Defendants long ago. 7 damages or costs in this action. 8 Plaintiff's action was dismissed changed its policy regarding 9 smoking in state prisons does not entitle Plaintiff to relief 10 from the Court ordered filing fee in this action. 11 IT IS SO ORDERED. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 Dated: 668554 September 18, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE That the CDC some years after Plaintiff is not entitled to any award of