Baker v. Marsh et al

Filing 13

ORDER signed by Magistrate Judge Allison Claire on 5/31/2013 DENYING plaintiff's 6 motion to proceed IFP pursuant to pursuant to 42 U.S.C. § 1915(g); within 28 days, plaintiff shall pay the entire filing fee of $350.00 in full; and failure to pay the filing fee in full will result in dismissal of this action. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERRY BAKER,
Plaintiff,

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vs.
MARSH, et al.,
Defendants.

ORDER
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No. 2:13-cv-0174 AC P

Plaintiff, a county prisoner proceeding pro se, has filed a civil rights action

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pursuant to 42 U.S.C. § 1983, and has moved: (1) for proof of his “pro per” status (ECF No. 5);

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and (2) to proceed in forma pauperis (ECF No. 6). Plaintiff has consented to the jurisdiction of

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the undersigned. ECF No. 7.

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In his complaint, filed when plaintiff was a prisoner at Solano County Jail,

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plaintiff seeks a total of $600,000,000.00 in damages from four defendants, who appear to be

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employees of the Solano County Jail, because defendants “violated [plaintiff’s] 8th Amendment

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right by leaving me in restraints for several hours at a time when it was not necessary.” ECF No.

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1 at 3. Plaintiff also seeks injunctive relief in the form of an order that the jail not leave inmates

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in restraints when in cells by themselves. Id. A review of the docket reflects that plaintiff has
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since been moved from Solano County Jail to Sacramento County Main Jail. ECF No. 4

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(address change filed February 21, 2013).

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On April 15, 2013, the undersigned filed an order to show cause directing

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plaintiff to show cause, within 21 days, why his application to proceed in forma pauperis in this

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case should not be denied pursuant to 28 U.S.C. § 1915(g). On May 7, 2013, the undersigned

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granted plaintiff’s request for an extension of time to respond to the order to show cause.

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Plaintiff has now filed a “Motion Opposing Denial of Indigent Inmate Status and

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Prepayment of Filing Fees.” ECF No. 12. It appears that plaintiff has filed this same, one page

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pleading in six active cases where he is the plaintiff. The motion reads, in its entirety:

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The court never dismissed any of my claims as frivolous. Also I
wrote to the court clerk and changed my address from Bowline Dr.
to 943 Falls Grove Way in Vac. Ca and the court clerk never
acknowledged it. Also all of those cases were against Solano
County and should only count as one complaint. I am an indigent
inmate. Please check the docket to confirm my change of address.
If the clerk did not file it how could I follow though with court
orders I never received?

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ECF No. 12 at 1.
Plaintiff appears to be arguing that the dismissals to which the undersigned

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referred in the April 15, 2013 order to show cause were not for frivololity, and cannot be the

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basis for denying his motion under § 1915(g). He also appears to argue that the dismissals were,

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for one reason or another, improper. Plaintiff further appears to argue that the court improperly

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severed complaints against a single defendant.

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As to his argument that the court mischaracterized the basis for the dismissals of

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plaintiff’s prior cases, plaintiff is incorrect. The undersigned accurately noted in the April 15,

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2013 order to show cause that: (1) at least three of plaintiff’s prior cases had been dismissed for

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failure to state a claim; and (2) plaintiff had filed at least 24 lawsuits since 2008.

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As to his argument that the prior dismissals were improper, or that his prior
complaints were improperly severed, plaintiff’s arguments are misplaced. Such arguments are
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more appropriately made in an appeal of the dismissals. The issue before this court is different:

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whether there is some reason, such as the applicability of a statutory exception, why § 1915(g)

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should not apply to the current in forma pauperis application. See Order, ECF No. 8 at 4.

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Plaintiff points to no such reason.

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Accordingly, plaintiff has failed to show cause why his application to proceed in

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forma pauperis should not be denied as barred under § 1915(g). The court will deny the motion,

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and direct plaintiff to pay the filing fee in full within 28 days. Failure to pay the filing fee shall

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result in dismissal of the action without prejudice.

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 6) is denied,
pursuant to 42 U.S.C. § 1915(g);

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2. Within twenty-eight days of the filing date of this order, plaintiff shall pay the
entire filing fee of $350.00 in full;

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3. Failure to pay the filing fee in full will result in dismissal of this action.
DATED: May 31, 2013

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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