Gougher v. Smith et al

Filing 5

ORDER: The Motions to Proceed IFP (ECF No. 2 ) is Denied. The Motion to Appoint Counsel (ECF No. 3 ) is Denied. This civil action is Dismissed without prejudice. To re-open his case, Plaintiff must, within forty-five days of this order, either: (1 ) prepay the full $400 filing fee or (2) file a renewed Motion to Proceed IFP together with the certified prison trust account statements required by 28 U.S.C. § 1915(a)(2). The Clerk shall amend the docket to reflect Plaintiff's current address. Signed by Judge William Q. Hayes on 05/31/2018. (All non-registered users served via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARLIN LEE GOUGHER,
BOP #71150-097,

Case No.: 3:18-cv-00521-WQH-AGS

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vs.

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SMITH, Warden of MCC;
C.O. OROSCO, Correctional
Officer;
C.O. Lt. KAAWALOA,
Correctional Officer/SHU; C.O.
SHAEBORN, Counselor/7th
Floor; C.O. Counselor
CLEVELAND; C.O. Unit
Manager CASTILLO; All
Members of SHU Team,
Defendants.

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ORDER

Plaintiff,

HAYES, Judge:
On March 9, 2018, Plaintiff Marlin Gougher initiated this action by filing the

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Complaint (ECF No. 1).

Plaintiff was formerly a federal pretrial detainee at the

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Metropolitan Correctional Center (“MCC”) in San Diego, California, but has been

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convicted and transferred to the Federal Correctional Institution (“FCI”) in Lompoc,

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California.1

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The Court takes judicial notice of Plaintiff’s criminal judgment, entered on December 18, 2017, in
United States v. Gougher, S.D. Cal. Criminal Case No. 3:14-cr-00635-WQH-1 (ECF No. 185). See Bias
v. Monyihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (federal courts “may take notice of proceedings in other
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3:18-cv-00521-WQH-AGS

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Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); instead,

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he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

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§ 1915(a) (ECF No. 2), together with a Motion to Appoint Counsel pursuant to 28 U.S.C.

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§ 1915(e)(1) (ECF No. 3).

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I.

Motion to Proceed IFP

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All parties instituting any civil action, suit, or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a).2 An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the

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plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he

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nevertheless remains obligated to pay the entire fee in increments regardless of whether his

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case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Williams v. Paramo, 775

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F.3d 1182, 1185 (9th Cir. 2015); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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A “prisoner” is defined as “any person” who at the time of filing is “incarcerated or

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

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delinquent for, violations of criminal law or the terms or conditions of parole, probation,

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pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 F.3d at 847.

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courts . . . if those proceedings have a direct relation to matters at issue.” (quoting Bennett v. Medtronic,
Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). According to the Federal Bureau of Prisons (“BOP”) Inmate
Locator,
Plaintiff
is
now
incarcerated
at
FCI-Lompoc.
See
Inmate
Locator,
https://www.bop.gov/inmateloc/ (last visited May 8, 2018); United States v. Basher, 629 F.3d 1161, 1165
n.2 (9th Cir. 2011) (taking judicial notice of information available to the public on the BOP’s Inmate
Locator). Therefore, the Court will direct the Clerk of Court to update the docket to reflect Plaintiff’s
current address and to ensure he is notified of the proceedings in this case. Plaintiff is cautioned, however,
that it is his responsibility to “keep the court and opposing parties advised as to [his] current address.” See
S.D. Cal. CivLR 83.11.b.

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In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50.
See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14
(eff. June. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to
proceed IFP. Id.
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3:18-cv-00521-WQH-AGS

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Prisoners seeking leave to proceed IFP must also submit a “certified copy of the[ir]

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trust fund account statement (or institutional equivalent) . . . for the 6-month period

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immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the

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certified trust account statement, the Court assesses an initial payment of 20% of (a) the

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average monthly deposits in the account for the past six months, or (b) the average monthly

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balance in the account for the past six months, whichever is greater, unless the prisoner has

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no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. The institution having

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custody of the prisoner collects subsequent payments, assessed at 20% of the preceding

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month’s income, in any month in which his account exceeds $10, and forwards them to the

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Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

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Plaintiff has not attached a certified copy of his MCC and/or BOP trust account

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statements for the 6-month period immediately preceding the filing of his Complaint. See

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28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2.

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statements, the Court is unable to assess the appropriate amount of the initial filing fee

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which is statutorily required to initiate the prosecution of this action. See 28 U.S.C.

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§ 1915(b)(1).

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II.

Without his certified trust account

Motion to Appoint Counsel

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Plaintiff has filed a Motion to Appoint Counsel pursuant to 28 U.S.C. § 1915(e)(1)

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(ECF No. 3). However, 28 U.S.C. § 1915(e)(1) only applies in proceedings in forma

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pauperis. Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). Because

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Plaintiff has not been granted leave to proceed IFP, he is not entitled to the appointment of

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counsel under 28 U.S.C. § 1915(e)(1).

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III.

Conclusion and Order

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The Motions to Proceed IFP (ECF No. 2) is DENIED. The Motion to Appoint

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Counsel (ECF No. 3) is DENIED. This civil action is DISMISSED without prejudice. To

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re-open his case, Plaintiff must, within forty-five days of this order, either: (1) prepay the

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full $400 filing fee or (2) file a renewed Motion to Proceed IFP together with the certified

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prison trust account statements required by 28 U.S.C. § 1915(a)(2).
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3:18-cv-00521-WQH-AGS

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The Clerk shall amend the docket to reflect Plaintiff’s current address as: Marlin

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Lee Gougher, BOP Reg. No. 71150-097, Federal Correctional Institution, 3600 Guard

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Road, Lompoc, California, 93436.

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Dated: May 31, 2018

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3:18-cv-00521-WQH-AGS