Peck v. Bullard

Full title: CHARLES ROBERT PECK, JR., Plaintiff, v. MICHAEL G. BULLARD, Defendant.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Nov 4, 2015

2:15-cv-2244 KJN P (E.D. Cal. Nov. 4, 2015)

Opinion

CHARLES ROBERT PECK, JR., Plaintiff, v. MICHAEL G. BULLARD, Defendant. No. 2:15-cv-2244 KJN P United States District Court, E.D. California. November 4, 2015

          ORDER

          KENDALL J. NEWMAN, Magistrate Judge.

         Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has not, however, filed an in forma pauperis affidavit or paid the required filing fee of $350.00 plus the $50.00 administrative fee.¹ See 28 U.S.C. §§ 1914(a), 1915(a). Therefore, plaintiff will be provided the opportunity either to submit the appropriate affidavit in support of a request to proceed in forma pauperis or to submit the required fees totaling $400.00.

1 If leave to file in forma pauperis is granted, plaintiff will still be required to pay the filing fee but will be allowed to pay it in installments. Litigants proceeding in forma pauperis are not required to pay the $50.00 administrative fee.

         Plaintiff is cautioned that the in forma pauperis application form includes a section that must be completed by a prison official, and the form must be accompanied by a certified copy of plaintiff's prison trust account statement for the six-month period immediately preceding the filing of this action.²

2 The only named defendant is Michael Bullard, an attorney who represented plaintiff during criminal proceedings. Plaintiff alleges that defendant Bullard provided ineffective assistance of counsel. Plaintiff seeks money damages. If plaintiff files an in forma pauperis application, and the complaint is screened, this action will most likely be dismissed pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (barring damages claims under 42 U.S.C. § 1983 for unconstitutional conviction or imprisonment unless conviction is invalidated or overturned).

         In accordance with the above, IT IS HEREBY ORDERED that:

         1. Plaintiff shall submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis on the form provided by the Clerk of Court, or the required fees in the amount of $400.00; plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed; and

         2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner.