Opinion
2:21-cv-1472-TLN-CKD PS
09-16-2021
LAUREN SPEARS, Plaintiff, v. BRIAN K. SPEARS, Defendant.
ORDER
(ECF No. 2)
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
Plaintiff, who is representing herself in this action, is a county jail inmate and seeks leave to proceed in forma pauperis (“IFP”) with this complaint unrelated to her conditions of confinement. (ECF No. 1.) See 28 U.S.C. § 1915. However, plaintiff did not file her IFP application on the form used by this federal district court, so her application is missing certain information required to proceed IFP as a prisoner in federal court. Accordingly, plaintiff's IFP application is denied for now, although plaintiff is granted the opportunity to re-submit her application on the appropriate form (enclosed with this order). As indicated on the enclosed court-approved form, plaintiff must also provide a certified copy of her prison trust account statement for the six-month period immediately preceding the filing of her complaint. See 28 U.S.C. § 1915(a)(2).
This action proceeds before the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c)(21).
Plaintiff is also cautioned that, as a prisoner within the meaning of 28 U.S.C. § 1915(h), even if her renewed IFP request is ultimately granted, she will still be required to pay the statutory filing fee of $350.00 if she elects to move forward with this action in federal court. Pursuant to the Prison Litigation Reform Act, prisoners proceeding IFP must pay the filing fee when funds become available in their prison accounts. 28 U.S.C. § 1915(b); Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). Thus, if plaintiff renews her IFP request and the court grants that request, plaintiff will be assessed an initial partial filing fee of 20 percent of the greater of (a) the average monthly deposits to plaintiff's trust account; or (b) the average monthly balance in plaintiff's account for the 6-month period immediately preceding the filing of this action. 28 U.S.C. § 1915(b)(1). After payment of that initial partial filing fee, plaintiff will be obligated to make monthly payments of 20 percent of the preceding month's income credited to her trust account, until the statutory $350 filing fee is paid in full. Id. § 1915(b)(2)-(3).
Upon receipt of a complete IFP application-if plaintiff chooses to move forward with this action in this court-the court will substantively screen plaintiff's complaint to determine whether the action is “frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or seeks monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2)(B).
ORDER
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's application to proceed in forma pauperis (ECF No. 2) is DENIED without prejudice;
2. The Clerk of Court is instructed to send plaintiff, in addition to a copy of this order, an Application to Proceed In Forma Pauperis By a Prisoner;
3. Within 30 days of this order, plaintiff shall file either (a) a completed application to proceed in forma pauperis, using the enclosed form, or (b) a notice of voluntary dismissal of the action under Federal Rule of Civil Procedure 41(a)(1)(A)(i), in which case no filing fee will be assessed; and
4. Failure to comply with this order will result in a recommendation that this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.