Jacobsen v. Diaz, et al.

Filing 10

ORDER DENYING Plaintiff's Motions to Postpone and Reimbursement of Filing Fees 8 , 9 , signed by Magistrate Judge Sheila K. Oberto on 3/7/2018. (Hellings, J)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL JACOBSEN, 10 11 12 Plaintiff, v. Case No. 1:18-cv-00199-SKO (PC) ORDER DENYING PLAINTIFF’S MOTIONS TO POSTPONE PROCEEDINGS AND FOR REIMBURSEMENT OF FILING FEES DIAZ, et al., (Docs. 8, 9) 13 Defendants. 14 15 Plaintiff, Michael Jacobsen, is a Fresno County Jail (“FCJ”) inmate proceeding pro se and 16 in forma pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. On March 5, 2018, 17 Plaintiff filed two motions seeking to: (1) postpone all proceedings in this action until he is 18 released and can obtain counsel to represent him (Doc. 8); and (2) be reimbursed for monies 19 removed from his FCJ trust account (Doc. 9). 20 In the motion to postpone all proceedings, Plaintiff indicates that he will be released from 21 custody on March 11, 2018, and that his sister is in the process of locating an attorney for him 22 from the Southern California area. (Doc. 8.) Plaintiff requests that all proceedings in this action 23 be placed on hold until April 11, 2018, to allow him to secure an attorney to represent him in this 24 action. (Id.) However, there are currently no deadlines for Plaintiff to do anything in this action. 25 The Complaint is in line to be screened pursuant to 28 U.S.C. § 1915A(a) ; thus, Plaintiff’s 26 request for a hold/postponement of all proceedings in this action is premature. 27 28 In the motion for reimbursement of monies removed from Plaintiff’s FCJ trust account, Plaintiff states that the present action is based on claims which were dismissed without prejudice 1 1 from Plaintiff’s prior action, case number 1:14-cv-00108-JLT. (Doc. 9.) Plaintiff states that he 2 was granted in forma pauperis status in case number 1:14-cv-00108-JLT and the present action. 3 (Id.) Plaintiff also states that no monies were ever withdrawn from his FCJ account to make 4 payments on his filing fee in case number 1:14-cv-00108-JLT, but that monies are being 5 withdrawn to make filing fee payments in the present action. (Id.) Plaintiff is under the mistaken 6 impression that “If an inmate is not granted in forma pauperis, then the 20% a month is taken 7 from his CDC income.” (Id., p. 2.) 8 9 10 11 A party instituting a civil action is required to pay a filing fee of $350. 28 U.S.C. § 1914. A party who cannot afford to pay that amount in a lump sum, may apply for in forma pauperis status under 28 U.S.C. § 1915. Subsection (b) of § 1915 requires: 15 . . . if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of -(A) the average monthly deposits to the prisoner’s account; or (B) the average monthly balance in the prisoner’s account for the 6month period immediately preceding the filing of the complaint or notice of appeal. 16 28 U.S.C. § 1915 (b)(1)(A),(B). The in forma pauperis status does not waive the filing fee for 17 incarcerated plaintiffs; it instead allows an incarcerated plaintiff to make payments on the filing 18 fee until it is paid in full. 12 13 14 19 Accordingly, Plaintiff’s incarceration and in forma pauperis status require that 20% of his 20 FJC account be withdrawn for payment of his filing fees for case number 1:14-cv-00108-JLT and 21 the present action. Withdrawals will continue until Plaintiff’s filing fees in case number 1:14-cv- 22 00108-JLT and the present action are paid in full. If Plaintiff had not been granted in forma 23 pauperis status, he would have been required to pay the filing fee in full to avoid dismissal of the 24 actions. 25 The Court was not aware, but has confirmed, that withdrawals were not taken from 26 Plaintiff’s FCJ trust account toward Plaintiff’s filing fee in case number 1:14-cv-00108-JLT. 27 Plaintiff is required to ultimately pay the filing fees in both case number 1:14-cv-00108-JLT and 28 the present action. Withdrawals from Plaintiff’s FCJ account will continue until the filing fee for 2 1 both of Plaintiff’s actions are paid in full. 2 Accordingly, it is HEREBY ORDERED that: 3 (1) Plaintiff’s motion to postpone all proceedings in this action, filed on March 5, 2018, (Doc. 8), is DENIED as premature; 4 (2) 5 Plaintiff’s motion for reimbursement of monies removed from his FCJ account as payment towards the filing fee in this action is DENIED; and 6 (3) 7 The Clerk of the Court is directed to serve another copy of the order granting 8 Plaintiff’s in forma pauperis application in this action (Doc. 4), as well as the 9 order granting Plaintiff in forma pauperis status in 1:14-cv-00108-JLT (Doc. 9), 10 on both the Fresno County Sheriff’s Department, via the court’s electronic case 11 filing system (CM/ECF), and the Financial Department, U.S. District Court, 12 Eastern District of California, Sacramento Division. 13 14 15 IT IS SO ORDERED. Dated: March 7, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3 .

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