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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL JACOBSEN,

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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)

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Defendants.

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Plaintiff, Michael Jacobsen, is a Fresno County Jail (“FCJ”) inmate proceeding pro se and

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in forma pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. On March 5, 2018,

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Plaintiff filed two motions seeking to: (1) postpone all proceedings in this action until he is

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released and can obtain counsel to represent him (Doc. 8); and (2) be reimbursed for monies

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removed from his FCJ trust account (Doc. 9).

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In the motion to postpone all proceedings, Plaintiff indicates that he will be released from

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custody on March 11, 2018, and that his sister is in the process of locating an attorney for him

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from the Southern California area. (Doc. 8.) Plaintiff requests that all proceedings in this action

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be placed on hold until April 11, 2018, to allow him to secure an attorney to represent him in this

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action. (Id.) However, there are currently no deadlines for Plaintiff to do anything in this action.

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The Complaint is in line to be screened pursuant to 28 U.S.C. § 1915A(a) ; thus, Plaintiff’s

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request for a hold/postponement of all proceedings in this action is premature.

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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
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from Plaintiff’s prior action, case number 1:14-cv-00108-JLT. (Doc. 9.) Plaintiff states that he

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was granted in forma pauperis status in case number 1:14-cv-00108-JLT and the present action.

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(Id.) Plaintiff also states that no monies were ever withdrawn from his FCJ account to make

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payments on his filing fee in case number 1:14-cv-00108-JLT, but that monies are being

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withdrawn to make filing fee payments in the present action. (Id.) Plaintiff is under the mistaken

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impression that “If an inmate is not granted in forma pauperis, then the 20% a month is taken

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from his CDC income.” (Id., p. 2.)

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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:

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. . . 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.

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28 U.S.C. § 1915 (b)(1)(A),(B). The in forma pauperis status does not waive the filing fee for

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incarcerated plaintiffs; it instead allows an incarcerated plaintiff to make payments on the filing

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fee until it is paid in full.

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Accordingly, Plaintiff’s incarceration and in forma pauperis status require that 20% of his

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FJC account be withdrawn for payment of his filing fees for case number 1:14-cv-00108-JLT and

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the present action. Withdrawals will continue until Plaintiff’s filing fees in case number 1:14-cv-

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00108-JLT and the present action are paid in full. If Plaintiff had not been granted in forma

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pauperis status, he would have been required to pay the filing fee in full to avoid dismissal of the

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actions.

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The Court was not aware, but has confirmed, that withdrawals were not taken from

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Plaintiff’s FCJ trust account toward Plaintiff’s filing fee in case number 1:14-cv-00108-JLT.

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Plaintiff is required to ultimately pay the filing fees in both case number 1:14-cv-00108-JLT and

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the present action. Withdrawals from Plaintiff’s FCJ account will continue until the filing fee for
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both of Plaintiff’s actions are paid in full.

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Accordingly, it is HEREBY ORDERED that:

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(1)

Plaintiff’s motion to postpone all proceedings in this action, filed on March 5,
2018, (Doc. 8), is DENIED as premature;

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(2)

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Plaintiff’s motion for reimbursement of monies removed from his FCJ account as
payment towards the filing fee in this action is DENIED; and

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(3)

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The Clerk of the Court is directed to serve another copy of the order granting

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Plaintiff’s in forma pauperis application in this action (Doc. 4), as well as the

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order granting Plaintiff in forma pauperis status in 1:14-cv-00108-JLT (Doc. 9),

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on both the Fresno County Sheriff’s Department, via the court’s electronic case

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filing system (CM/ECF), and the Financial Department, U.S. District Court,

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Eastern District of California, Sacramento Division.

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IT IS SO ORDERED.
Dated:

March 7, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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