Benyamini v. Blackburn et al

Filing 25

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 1/29/2014 ORDERING defendants to file an answer to plaintiff's complaint within 30 days of the the district court's review and disposition of the instant f indings and recommendations; and the 2/5/2014 status conference is hereby VACATED, to be reset following the filing of the answer; and RECOMMENDING that defendants 17 motion to revoke plaintiff's ifp status be denied for the reasons stated herein. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT BENYAMINI,

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Plaintiff,

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No. 2:13-cv-0205 MCE AC P

v.

ORDER AND FINDINGS &
RECOMMENDATIONS

M. BLACKBURN, et al.,

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Defendants.

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Plaintiff is proceeding in this 28 U.S.C. § 1983 action pro se and in forma pauperis.

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Currently pending before the court is defendants’ motion to revoke plaintiff’s in forma pauperis

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status pursuant to 28 U.S.C. § 1915(g). See ECF No. 17. Plaintiff has filed an opposition to the

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motion, ECF No. 19, and the time to file a reply has lapsed. For the reasons discussed herein, the

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undersigned recommends denying the motion.

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I.

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Motion to Revoke In Forma Pauperis Status
At the outset, the court notes that at the time that plaintiff filed the complaint as well as his

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in forma pauperis application in the current case, plaintiff was not in custody. Neither party has

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addressed the effect that plaintiff’s lack of custody status has on the pending motion. However,

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the federal statute and case law governing the provision and revocation of in forma pauperis

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status makes it clear that while a non-prisoner may qualify for in forma pauperis status, the

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revocation of such status applies only to “prisoners.” Compare 28 U.S.C. § 1915(a) with §
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1915(g)-(h); see also Andrews v. Cervantes, 493 F.3d 1047, 1052 n. 1 (9th Cir. 2007) (finding

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that 28 U.S.C. § 1915, which allows for filing fees to be waived based on indigency, is not limited

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to prisoners) (citing Lister v. Dep’t of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005)

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(collecting the cases stating the same). “The term ‘prisoner’ means any person incarcerated or

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detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent

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for, violations of criminal law or the terms and conditions of parole, probation, pre-trial release,

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or diversionary program.” 28 U.S.C. § 1915(h). The Ninth Circuit Court of Appeal has strictly

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construed this statutory provision finding that it excludes immigration detainees. See Agyeman v

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I.N.S., 296 F.3d 871, 886 (9th Cir. 2002). In Page v. Torrey, 201 F.3d 1136 (9th Cir. 2000), the

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Ninth Circuit held that “only individuals who, at the time they seek to file their civil actions, are

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detained as a result of being accused of, convicted of, or sentenced for criminal offenses are

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‘prisoners' within the definition of 42 U.S.C. § 1997e and 28 U.S.C. § 1915.” 201 F.3d at 1140.

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At the time that he filed the present civil action, plaintiff was no longer detained for a criminal

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offense. Therefore, the undersigned recommends denying the motion.

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ACCORDINGLY IT IS HEREBY ORDERED that:

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1. Defendants are ordered to file an answer to plaintiff’s complaint within thirty days of

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the district court’s review and disposition of the instant Findings and Recommendations;
2. The Status Conference scheduled for February 5, 2014 is hereby vacated, to be reset
following the filing of the answer.

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IT IS FURTHER RECOMMENDED that:

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1. Defendants’ motion to revoke plaintiff’s in forma pauperis status (ECF No. 17) be

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denied for the reasons stated herein.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: January 29, 2014

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