Turner v. Cates et al

Filing 11

ORDER granting 9 Motion signed by Magistrate Judge Gregory G. Hollows on 8/17/11: Within fourteen days of the date of this order, the current Acting Warden of California State Prison-Corcoran, Connie Gipson, or the warden's designee, shall bot h inform the court why prison officials, if they have done so, have refused to provide the requisite certification for plaintiff to submit a completed affidavit in support of his request to proceed in forma pauperis and a certified copy of his prison trust account for the six month period. The Clerk of the Court is directed to serve this order on the current Acting Warden of CSP-Corcoran, Connie Gipson. The Clerk of the Court is directed to once again send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY R. TURNER,

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Plaintiff,

No. CIV S-11-1690 WBS GGH P

vs.
MATTHEW CATES, et al.,
Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant

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to 42 U.S.C. § 1983. On July 5, 2011, plaintiff was directed to submit a completed affidavit in

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support of his request to proceed in forma pauperis and a certified copy of his prison trust

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account for the six month period preceding the filing of his complaint. See 28 U.S.C. §

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1915(a)(2). When plaintiff’s in forma pauperis application was returned, it was deficient.

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Therefore, by Order filed on July 25, 2011, plaintiff was again directed to submit a completed

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application, including the certification required on the application form and a certified copy of

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his prison trust account as set forth above.

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On August 10, 2011, before the time for filing his in forma pauperis application

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had expired in accordance with the Order at docket # 8, plaintiff again returned a defective and

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incomplete application, failing once more to provide a certified copy of his prison trust account
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statement for the six month period immediately preceding the filing of the complaint and failing

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to obtain the certification required on the application form. See 28 U.S.C. § 1915(a)(2). Just

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prior to filing this third deficient application, plaintiff filed a motion, on August 3, 2011, alleging

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that he is being wrongly housed in administrative segregation as a form of retaliation for an

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unspecified reason and his legal property and supplies are being withheld, including pens and

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paper. While plaintiff does not explain how he is able to file, for example, the instant motion, he

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nevertheless contends that the accountant at California State Prison (CSP)-Corcoran has refused

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to certify his prison trust account. Plaintiff was told, in the Order, filed on July 25, 2011, that

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should an officer refuse to sign the certification or to acquire the requisite information to fill it

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out, he should identify any such officer. Plaintiff now asks the court to invoke the All Writs Act,

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28 U.S.C. § 1651(a), to compel Suzan Hubbard, whom he identifies as the Acting Warden, and

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the unnamed accountant to provide the requisite information within ten days.

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No defendants have been served with process. Usually persons or entities not

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parties to an action are not subject to orders for injunctive relief. Zenith Radio Corp. v. Hazeltine

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Research, Inc., 395 U.S. 100 (1969). However, the fact one is not a party does not automatically

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preclude the court from acting. The All Writs Act, 28 U.S.C. § 1651(a) permits the court to issue

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writs “necessary or appropriate in aid of their jurisdictions and agreeable to the usages and

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principles of law.” See generally S.E.C. v. G.C. George Securities, Inc., 637 F.2d 685 (9th Cir.

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1981); United States v. New York Telephone Co., 434 U.S. 159 (1977). This section does not

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grant the court plenary power to act in any way it wishes; rather, the All Writs Act is meant to aid

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the court in the exercise and preservation of its jurisdiction. Plum Creek Lumber Company v.

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Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979).

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The court is concerned that it may lose its jurisdiction if plaintiff is unable to

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prosecute this action because he cannot provide the requisite six-month certified prison trust

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account and completed certificate necessary for him to submit a completed in forma pauperis

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application.
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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s motion, filed on August 3, 2011 (docket # 9), is granted as modified

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herein;

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2. Within fourteen days of the date of this order, the current Acting Warden of

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California State Prison-Corcoran, Connie Gipson, or the warden’s designee, shall both inform the

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court why prison officials, if they have done so, have refused to provide the requisite certification

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for plaintiff to submit a completed affidavit in support of his request to proceed in forma pauperis

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and a certified copy of his prison trust account for the six month period preceding the filing of his

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complaint and, in any event, must provide the requisite supporting documentation. See 28

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U.S.C. § 1915(a)(2).

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3. The Clerk of the Court is directed to serve this order on the current Acting

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Warden of CSP-Corcoran, Connie Gipson, at 4001 King Avenue, P.O. Box 8800, Corcoran, CA,

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93212-8309.

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4. The Clerk of the Court is directed to once again send plaintiff a new

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Application to Proceed In Forma Pauperis By a Prisoner.

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DATED: August 17, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:009
turn1690.ord

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