Calloway v. California Department of Corrections and Rehabilitation et al

Filing 19

ORDER signed by Magistrate Judge Dennis M. Cota on 1/11/19 VACATING 10 Findings and Recommendations; DENYING 15 Motion for Extension of time; and GRANTING 2 , 12 , 16 Motions to Proceed IFP. Plaintiff is obligated to pay the statutory fili ng fee of $350.00 for this action. Also, DIRECTING MONTHLY PAYMENTS be made from Prison Account of Jamisi Jermaine Calloway. CDC shall collect payments from plaintiff's account and forward to the clerk until the $350.00 filing fee is paid in full. Clerk to serve this order and a copy of plaintiff's IFP on the Director of CDC. Clerk to also serve Financial with a copy of this order. (cc: CDC Director and Financial). (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,

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No. 2:16-CV-2532-WBS-DMC-P

v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983.
On August 8, 2018, the court issued findings and recommendations that plaintiff’s

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application for leave to proceed in forma pauperis be denied because, according to plaintiff’s

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prison trust account statement on file at the time, plaintiff had $6,369.68 in his account. Plaintiff

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filed objections on August 17, 2018, and a renewed application for leave to proceed in forma

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pauperis on August 30, 2018. In his objections, plaintiff claims he no longer has any funds in his

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trust account, though he did not submit a current certified copy of his trust account statement with

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his renewed in forma pauperis application.

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On December 6, 2018, the court directed plaintiff to submit a current certified

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copy of his trust account statement within 30 days. On January 4, 2019, plaintiff filed a third

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application for leave to proceed in forma pauperis, again without a current certified copy of his

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trust account statement. Despite this failure to comply with the court’s December 6, 2018, order,

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the court has obtained plaintiff’s current trust account statement directly from the prison.1 This

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current statement shows plaintiff has $2.20 on account as of January 9, 2019. Because the factual

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basis for the court’s August 8, 2018, recommendation that plaintiff’s in forma pauperis

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application be denied is no longer accurate, the court will vacate the findings and

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recommendations.

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Pending before the court are plaintiff’s motions for leave to proceed in forma

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pauperis (Docs. 2, 12, and 16). Plaintiff has submitted a declaration that makes the showing

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required by 28 U.S.C. § 1915(a). The requests to proceed in forma pauperis will, therefore, be

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granted.

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Plaintiff’s motion for an extension of time to submit his trust account statement
(Doc. 15) will be denied as moot.
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To:

The California Department of Corrections and Rehabilitation
1515 S Street, Sacramento, California 95814:

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Plaintiff is obligated to pay the full statutory filing fee of $350.00 for this action.

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In addition to any initial partial filing fee required to be assessed, plaintiff will be obligated to

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make monthly payments in the amount of twenty percent of the preceding month’s income

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credited to plaintiff’s inmate trust account. The agency referenced above is required to send to

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the Clerk of the Court the initial partial filing fee and thereafter payments from plaintiff’s inmate

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trust account each time the amount in the account exceeds $10.00, until the statutory filing fee of

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$350.00 is paid in full. See 28 U.S.C. § 1915(b)(2).

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Accordingly, IT IS HEREBY ORDERED that:

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The findings and recommendations issued on August 8, 2018, are vacated;

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Plaintiff’s motion for an extension of time (Doc. 15) is denied as moot;

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Plaintiff’s motions for leave to proceed in forma pauperis (Docs. 2, 12, and

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16) are granted;
4.

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Plaintiff is required to pay the full statutory filing fee of $350.00 for this

action pursuant to 28 U.S.C. §§ 1914(a) and 1915(b)(1);
5.

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The director of the agency referenced above, or a designee, shall collect

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from plaintiff’s inmate trust account an initial partial filing fee in accordance with the provisions

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of 28 U.S.C. § 1915(b)(1) and shall forward the amount to the Clerk of the Court, such payment

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to be clearly identified by the name and number assigned to this action;
6.

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Thereafter, the director of the agency referenced above, or a designee, shall

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collect from plaintiff's inmate trust account the balance of the filing fee by collecting monthly

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payments from plaintiff's inmate trust account in an amount equal to twenty percent (20%) of the

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preceding month's income credited to plaintiff’s inmate trust account and forwarding payments to

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the Clerk of the Court each time the amount in the account exceeds $10.00 in accordance with 28

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U.S.C. § 1915(b)(2), until the $350.00 filing fee for this action has been paid in full, such

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payments to be clearly identified by the name and number assigned to this action;

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The Clerk of the Court is directed to serve a copy of this order and a copy

of plaintiff's signed in forma pauperis affidavit to the address shown above; and
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The Clerk of the Court is further directed to serve a copy of this order on

the Financial Department of the court.

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Dated: January 11, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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