Opinion
1:11-cv-01339-LJO SKO.
September 1, 2011
ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS (Docs. 2, 5) ORDER DENYING AS MOOT PLAINTIFF'S MOTION TO VOID CIVIL CASE (Doc. 9)
I. INTRODUCTION
On August 12, 2011, Plaintiff Carlos Gilbert Law ("Plaintiff"), a state prisoner proceeding pro se and seeking to proceed in forma pauperis, filed this action against Defendant Gregory Steven Miller, a 7-Eleven employee, as well as "Doe" Defendants, including the 7-Eleven store manager, the 7-Eleven franchise owner, and/or the 7-Eleven Chief Executive Officer. Plaintiff had initially filed an incomplete application to proceed in forma pauperis. (Doc. 2.) On August 29, 2011, Plaintiff filed a fully complete in forma pauperis application, as well as a "motion to void" civil case no. 1:11-cv-1358-AWI-DLB. (Docs. 5, 9.)
For the reasons set forth below, (1) Plaintiff's application to proceed in forma pauperis is GRANTED and (2) Plaintiff's "motion to void" civil case is DENIED AS MOOT. The Court also notes that Plaintiff has now fully complied with the Court's August 29, 2011, order requiring Plaintiff to file a complete application to proceed in forma pauperis or to pay the filing fee. (Doc. 8.)
II. DISCUSSION
A. Application to Proceed In Forma Pauperis
Plaintiff is a prisoner proceeding pro se and had requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has now made the showing required under § 1915(a), including completing the authorization for the deduction of the filing fee from Plaintiff's trust account as funds are available. (Doc. 5, p. 2.) The request to proceed in forma pauperis is GRANTED.Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments in the amount of twenty percent of the preceding month's income credited to Plaintiff's trust account. The California Department of Corrections or his designee is required to send to the Clerk of the Court payments from Plaintiff's account each time the amount in the account exceeds $10.00, until the statutory filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
B. Motion to Void Civil Case
On August 29, 2011, Plaintiff filed a "motion to void" civil case no. 1:11-cv-1358-AWI-DLB. (Doc. 9.) As the Court has already dismissed and closed that action as being duplicative to this instant action, Plaintiff's motion is DENIED AS MOOT. ( See 1:11-cv-1358-AWI-DLB, Doc. 5.)
C. Plaintiff's Compliance with Court Order to File an In Forma Pauperis Application
On August 29, 2011, the Court issued an order requiring Plaintiff to file a fully completed application to proceed in forma pauperis or to pay the filing fee within 30 days. (Doc. 8.) On the same day, the Court received from Plaintiff his now fully completed application to proceed in forma pauperis. (Doc. 5.) As the Court's order and Plaintiff's application apparently crossed in the mail, the Court notes that Plaintiff has fully complied with the Court's August 29, 2011, order.
III. CONCLUSION AND ORDER
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's application to proceed in forma pauperis (Docs. 2, 5) is GRANTED;
2. Plaintiff's motion to void civil case no. 1:11-cv-1358-AWI-DLB. (Doc. 9) is DENIED AS MOOT;
3. The Director of the California Department of Corrections or his designee is DIRECTED to:
(a) Collect payments from Plaintiff's prison trust account in an amount equal to twenty percent (20%) of the preceding month's income credited to the prisoner's trust account; and
(b) Forward those payments to the Clerk of the Court each time the amount in the account exceeds $10.00, in accordance with 28 U.S.C. § 1915(b)(2), until a total of $350.00 has been collected and forwarded to the Clerk of the Court. The payments shall be clearly identified by the name and number assigned to this action; and
4 The Clerk of the Court is DIRECTED to:
(a) Serve a copy of this order and a copy of Plaintiff's in forma pauperis application on the Director of the California Department of Corrections via the electronic case filing system (CM/ECF); and
(b) Serve a copy of this order on the Financial Department, U.S. District Court, Eastern District of California, Fresno Division.
IT IS SO ORDERED.
Dated: August 31, 2011
APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER
I, CARLOS G. LAW, declare that I am the plaintiff in the above-entitled proceeding; that, in support of my request to proceed without prepayment of fees under 28 U.S.C. section 1915, I declare that I am unable to pay the fees for these proceedings or give security therefor and that I am entitled to the relief sought in the complaint.In support of this application, I answer the following questions under penalty of perjury: (If "no" DO NOT USE THIS FORM) DVI RECEPTION CENTER. NONE
1. Are you currently incarcerated? Yes __ No State the place of your incarceration. 2. Are you currently employed (includes prison employment)? __ Yes No a. If the answer is "yes" state the amount of your pay. b. If the answer is "no" state the date of your last employment, the amount of your take-home salary or wages and pay period, and the name and address of your last employer. N/A 3. Have you received any money from the following sources over the last twelve months? a. Business, profession, or other self-employment: __ Yes No b. Rent payments, interest or dividends: __ Yes No c. Pensions, annuities or life insurance payments: __ Yes No d. Disability or workers compensation payments: __ Yes No e. Gifts or inheritances: __ Yes No f. Any other sources: __ Yes No If the answer to any of the above is "yes," describe by that item each source of money. Also state the amount received and what you expect you will continue to receive (attach an additional sheet if necessary). N/A N/A IMPORTANT : This form must be dated and signed below in order for the court to consider your application. 4. Do you have cash (includes balance of checking or savings accounts)? __ Yes No If "yes" state the total amount: 5. Do you own any real estate, stocks, bonds, securities, other financial instruments, automobiles or other valuable property? __ Yes No If "yes" describe the property and state its value: 6. Do you have any other assets? __ Yes No If "yes," list the asset(s) and state the value of each asset listed: N/A 7. List all persons dependent on you for support, stating your relationship to each person listed and how much you contribute to their support. N/A I hereby authorize the agency having custody of me to collect from my trust account and forward to the Clerk of the United States District Court payments in accordance with 28 U.S.C. section 1915(b)(2).08-25-11 SS#"418-04-3748." NOTE __________________________ DATE SIGNATURE OF APPLICANT : Within sixty days from the date of this application you must forward to the court a certified copy of your prison trust account statement showing transactions for the past six months. (Revised 01/2008)Inmate Statement Report
CDCR# Inmate/Group Name Institution Unit Cell/Bed Current Available Balance: F29888 LAW, CARLOS DVI WKT200000000 00006S $0.00Transaction List
Transaction Date Institution Transaction Type Source Doc# Receipt#/Check# Amount Account Balance 01/01/2011 DVI BEGINNING BALANCE $0.00 05/20/2011 DVI TRACS TRANSFER IN TX05202011 $10.00 $10.00 06/16/2011 DVI LEGAL COPY ($2.40) $7.60 06/16/2011 DVI LEGAL COPY ($1.40) $6.20 06/24/2011 DVI SALES 8 ($6.20) $0.00Encumbrance List
Encumbrance Type Transaction Date Amount **No information was found for the given criteria.**Obligation List
Sum of Tx for Date Obligation Type Court Case# Original Owed Balance Range for Oblg Current Balance PLRA CV 06-1061 OWW $350.00 $0.00 $350.00 LJORestitution List
Sum of Tx for Date Restitution Court Case# Original Owed Balance Interest Accrued Range for Oblg Current Balance RESTITUTION FINE 29999 $1,200.00 $0.00 $0.00 $1,055.29 FINE PC 1202.45 29999 $1,200.00 $0.00 $0.00 $1,200.00 RESTITUTION FINE CRM010643 $200.00 $0.00 $0.00 $200.00 NAME: LAW NUMBER: F29888 HOUSING: K 206 DATE Sent: 08242011Certified copy of Inmate's Trust Account
You requested a certified copy of your Trust Account. It is now available.You have three days to prepare your legal paperwork for mailing to the court.
You are responsible for making all arrangements to receive your copy of your Certified Trust Account.
Be prepared to:
1. Inspect the Certified Trust account: Name, CDCR Number, Housing and date. 2. Request the Law Library for service with this matter. 3. Bring all your completed legal work with you for mailing to the court. 4. Bring an addressed envelope for mailing to the court. (Be sure that your legal work fits into the envelope) 5. Fill out a Trust Withdrawal form for postage. You may use your own postage if you have it. 6. If you wish a copy of your Certified Trust Account request a copy to be made. Note:If you are an R.C., S.P.U., or an Ad, Seg. Inmate you will be escorted for service. SS#418-04-3748 ________________ CARLOS G. LAW 08-25-11 Sign your name Print your name
Date of Service Bring your pink copy of this notice when you come to (_____________________)The original, (white copy) will be sent to your C-file.
The (yellow copy) is proof of service and is maintained.
*if you require a check to be cut or a money order for Court fees you will make that request through your Counselor.
Note: it is your responsibility to be prepared to meet your court deadline. Staff member signature DVI Library #09
_________________________________ Recd in mail 8/25/11 C.D.C.R. 128-B Informational ChronoExhibit