Quiroga v. Aguilara et al

Filing 5

ORDER Directing Plaintiff to Submit Notice of Clarification, signed by Magistrate Judge Michael J. Seng on 9/21/15. 21-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MONICO J. QUIROGA,

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Plaintiff,

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1:15-cv-01202-MJS (PC)
ORDER DIRECTING PLAINTIFF TO SUBMIT
NOTICE OF CLARIFICATION

v.
AGUILARA, et al.,

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Defendant.

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Plaintiff has filed this civil rights action pursuant to 42 U.S.C. § 1983 and also filed
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a prisoner’s motion to proceed in forma pauperis.

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The address listed on the complaint indicates Plaintiff was not incarcerated at the
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time he initiated the action. (See ECF No. 1 at 1.) However, Plaintiff’s
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contemporaneously-filed application to proceed in forma pauperis states he is
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incarcerated at the Lerdo Detention Facility in Kern County.1 (ECF No. 2)

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The in forma pauperis statute, 28 U.S.C. § 1915, distinguishes unincarcerated
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indigent people from incarcerated ones. Under § 1915(a)(1), a non-prisoner plaintiff may
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file suit without prepaying fees, provided he or she submits an affidavit demonstrating
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“that the person is unable to pay such fees or give security therefor.” Escobedo v.

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Whether or not he was incarcerated at the time of filing this action, it is clear that he is now in custody at
the Lerdo Pretrial Facility following a September 5, 2015 arrest. See Kern County Sheriff’s Office Inmate
Search website, http://www.kernsheriff.com/misc/inmatesearch/Pages/default.aspx.

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Applebees, 787 F.3d 1226, 1232 (9th Cir. 2015); Ingle v. Cir. City Stores, Inc., 328 F.3d

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1165, 1177 (9th Cir. 2003). An indigent prisoner, by contrast, is not exempt from

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prepayment. 28 U.S.C. § 1915(b)(1). Instead, the prisoner must submit a copy of his or

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her trust account statement, make an initial upfront payment, followed by subsequent

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monthly installments, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(1)-(2). In this

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case, a ruling on Plaintiff’s motion to proceed in forma pauperis by a prisoner turns on

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whether Plaintiff was incarcerated at the time that he filed this action.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff shall file a notice within
twenty-one (21) days from the date of this order clarifying whether he was incarcerated
when he initiated suit on August 3, 2015 and setting forth his current mailing address.

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IT IS SO ORDERED.
Dated:

September 21, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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