Stephen v. Montejo et al

Filing 95

ORDER signed by Magistrate Judge Deborah Barnes on 12/14/2020 DENYING plaintiff's 91 motion for a settlement conference, as premature ; DENYING plaintiff's 92 motion for placement of a lien on his trust account; DENYING plaintiff& #039;s 92 motion for a stay of these proceedings to permit him to pay the filing fee; REJECTING plaintiff's 92 challenge to the order revoking his ifp status based on Griffin v. Illinois; and DENYING plaintiff's 92 motion for counsel, as premature. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JIMMIE STEPHEN,

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No. 2:18-cv-1796 KJM DB P

Plaintiff,
v.

ORDER

E. MONTEJO, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se. In an order filed November 30, 2020, Chief

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Judge Mueller granted defendants’ motion to revoke plaintiff’s in forma pauperis status. (ECF

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No. 93.) Plaintiff must pay the $400 filing fee within thirty days of the date of that order if he

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wishes to proceed with this action.

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Plaintiff filed two motions on October 19, 2020. In the first, plaintiff requests a settlement

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conference. (ECF No. 91.) Because plaintiff must pay the filing fee to proceed, any settlement

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conference is premature. Plaintiff’s request will be denied.

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In his second filing, plaintiff makes several requests: (1) he asks that a “lien” be placed

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on his inmate trust account to pay the $400 fee or, in the alternative, that this case be stayed until

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he can obtain the money to pay the fee; (2) he argues that requiring payment of the filing fee is

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unconstitutional under Griffin v. Illinois, 351 U.S. 12 (1956); and (3) he asks for the appointment

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of counsel. (ECF No. 92.) Placing a lien on plaintiff’s account is essentially what this court
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orders when an inmate is granted in forma pauperis status. In forma pauperis status permits

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inmates to pay off the filing fee over time as money accrues in their trust accounts. See 28 U.S.C.

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§ 1915(a), (b). A plaintiff who is not proceeding in forma pauperis must pay the filing fee before

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proceeding with a civil action. See 28 U.S.C. § 1914(a) (“The clerk of each district court shall

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require the parties instituting any civil action, suit or proceeding in such court, whether by

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original process, removal or otherwise, to pay a filing fee of $350 . . . .”); 28 U.S.C. 1914(c)

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(“Each district court by rule or standing order may require advance payment of fees.”); E.D. Cal.

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R. 121(c) (“[T]he Clerk shall not file any paper, issue any process, or render any other service for

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which a fee is prescribed by statute . . . unless the fee is prepaid.”)

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With respect to plaintiff’s request for a stay, plaintiff cites no legal basis for one. If

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plaintiff is unable to pay the $400 fee within the time required by Chief Judge Mueller’s order,

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this action will be dismissed without prejudice. Once plaintiff has the funds to pay the filing fee,

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he may institute a new proceeding.

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Plaintiff’s argument that he must be permitted to proceed without payment of the filing

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fee based on the decision in Griffin v. Illinois is essentially a challenge to this court’s

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recommendation that plaintiff’s in forma pauperis status be revoked. It is baseless. The Court in

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Griffin addressed the ability of a criminal defendant to challenge the charges against him and his

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conviction. See Griffin, 351 U.S. at 17 (Criminal “defendants unable to pay court costs in

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advance” may not “be denied the right to plead not guilty or to defend themselves in court.”).

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Griffin is inapplicable to a plaintiff in a civil suit. See Rodriguez v. Cook, 169 F.3d 1176, 1180

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(9th Cir. 1999) (Griffin stands for the proposition that the Constitution requires the waiver of

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filing fees in criminal cases) (citing Mayer v. Chicago, 404 U.S. 189, 195–96 (1971) and Griffin,

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351 U.S. at 18-20). Moreover, to the extent plaintiff’s Griffin argument is considered an

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objection to this court’s recommendation, it is untimely. (See June 12, 2020 Findings and

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Recommendations (ECF No. 86) (objections due within thirty days).)

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Finally, with respect to plaintiff’s request for the appointment of counsel. Plaintiff makes

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no argument as to why counsel should be appointed at this juncture. Because plaintiff must pay

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the filing fee before he can proceed, appointment of counsel is premature.
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Accordingly, IT IS HEREBY ORDERED that

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1. Plaintiff’s motion for a settlement conference (ECF No. 91) is denied as premature;

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2. Plaintiff’s motion for placement of a lien on his trust account (ECF No. 92) is denied;

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3. Plaintiff’s motion for a stay of these proceedings to permit him to pay the filing fee

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(ECF No. 92 ) is denied;
4. Plaintiff’s challenge to the order revoking his in forma pauperis status based on Griffin
v. Illinois (ECF No. 92) is rejected; and
5. Plaintiff’s motion for the appointment of counsel (ECF No. 92) is denied as premature.
Dated: December 14, 2020

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DLB:9
DB/prisoner-civil rights/step1796.10 20 mtns

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