Opinion
No. CIV S-06-0990 GEB DAD P.
October 23, 2008
ORDER
Plaintiff commenced this action while incarcerated. His pro se complaint dated May 3, 2006, was mailed to the court with a notice of change of address effective May 8, 2006, upon his anticipated release on parole. On May 31, 2006, the court sent plaintiff an in forma pauperis application appropriate for use by a non-prisoner. Plaintiff completed and returned the application but indicated therein that immediately upon his release he was booked into the Sacramento County Main Jail and was still confined there.
On August 14, 2006, the court received a letter from the California Department of Corrections Region II Parole Division, returning the case opening documents sent to plaintiff by the Clerk of the Court on May 8, 2006. The letter informed the court that plaintiff was deported on July 6, 2006. On August 16, 2006, the court ordered plaintiff to file a declaration describing his custody status, providing the court with his current address, and stating his intention and ability to litigate this action. On September 12, 2006, having not received a timely declaration from plaintiff, the court issued findings and recommendations, recommending that the action be dismissed without prejudice. While the findings and recommendations were pending, plaintiff acknowledged in several filings, including objections, that he had been deported but that he was still interested in pursuing this action. Although the court questions whether plaintiff will be able to diligently prosecute his case given his deported status, the court will vacate its previously filed findings and recommendations at this time and allow the case to proceed in accordance with this order.
On September 18, 2006, plaintiff filed with the court a "request for reconsideration," and on October 2, 2006, filed a document entitled "request for relief from default." In both filings, plaintiff requested that the court allow him to proceed with this case, notwithstanding his late-filed declaration and his deportation from the United States. In light of this order, plaintiff's requests will be denied as unnecessary.
Although plaintiff has submitted an application to proceed in forma pauperis, the application is now moot because plaintiff is no longer incarcerated. Ordinarily, a prisoner-plaintiff is permitted to file a civil action in federal court without prepayment of fees if he alleges in an affidavit that he is unable to pay such fees. See 28 U.S.C. § 1915(a). However, here, for the court to assess whether plaintiff is entitled to proceed IFP, he must apply to proceed IFP under the general provisions of 28 U.S.C. § 1915(a)(1). Accordingly, the court will provide plaintiff with an opportunity to submit a non-prisoner affidavit in support of his request to proceed in forma pauperis or the required filing fee ($350.00).
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's June 23, 2006 motion to proceed in forma pauperis (Doc. No. 7) is denied as moot;
2. The court's September 12, 2006 findings and recommendations (Doc. No. 13) are vacated;
3. Plaintiff's September 18, 2006 request for reconsideration (Doc. No. 15) is denied as unnecessary;
4. Plaintiff's October 2, 2006 request for relief from default (Doc. No. 17) is denied as unnecessary;
5. Plaintiff shall submit, within thirty days from the date of this order, a non-prisoner affidavit in support of his request to proceed in forma pauperis or the required filing fee ($350.00). Plaintiff is cautioned that failure to comply with this order will result in a recommendation that this action be dismissed without prejudice. In the alternative, if plaintiff no longer wishes to proceed with this case, he may file a request to voluntarily dismiss this action without prejudice; and
6. The Clerk of the Court is directed to send plaintiff a copy of the non-prisoner in forma pauperis form used by this district.