Opinion
Civil No. 14cv1643 AJB (NLS)
10-20-2014
JOSHUA DAVID WILLIAMS, CDCR #AU-5529, Plaintiff, v. SCRIPPS HOSPITAL, et al., Defendants.
ORDER:
1) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILING TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) AND/OR FAILING TO MOVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a)
AND
2) DENYING MOTION FOR DECLARATORY RELIEF AS MOOT
(ECF Doc. No. 11)
Joshua David Williams ("Plaintiff"), a state inmate currently incarcerated at the California Institution for Men ("CIM") in Chino, California, and proceeding pro se, has filed a civil action ("Compl.") pursuant to 42 U.S.C. § 1983 (ECF Doc. No. 1).
I. Allegations and Procedural Background
In his Complaint, as well as in several supplemental documents and exhibits he has filed in support (ECF Doc. Nos. 3, 5, 7, 9, 13, 17), Plaintiff seeks damages and injunctive relief related to San Diego Superior Court criminal proceedings which were pending at the time he filed suit, and was still detained at the San Diego Central Jail. See Compl. (ECF Doc. No. 1) at 8, citing Case Nos. SCD 247180 and SCD 255778. While not altogether clear, it appears Plaintiff seeks this Court's assistance in "reversing" his state court proceedings, based on allegations of prosecutorial misconduct. Id. at 13. Plaintiff seeks declaratory relief "enjoining the prosecution from continuing," "forcing [prosecutors] to produce . . . evidence withheld by their office," and a "reversal and dismissal of all [his] present and previous cases." Id. at 12.
On September 15, 2014, Plaintiff filed a Notice of Change of Address indicating he is currently incarcerated at CIM (ECF Doc. No. 15).
In addition, Plaintiff has filed a separate Motion for Declaratory Relief asking the Court to "add" San Diego Superior Court Case SCD 255778 to this case, because it is related, and involves an "illegal" arrest (ECF Doc. No. 11).
Finally, on October 16, 2014, Plaintiff filed a petition for writ of mandamus and/or prohibition in the Ninth Circuit Court of Appeals, which has been assigned Case No. 1473205 (ECF Doc. No. 18). "A petition for a writ of mandamus does not deprive the trial court of jurisdiction," however. United States v. Valenzuela-Arisqueta, 724 F.3d 1290, 1297 n.8 (9th Cir. 2013) (citing Ellis v. U.S. District Court for the Western District of Washington (Tacoma), 360 F.3d 1022, 1023 (9th Cir. 2004) (noting that the "district court does not lose jurisdiction over a case merely because a litigant files an interlocutory petition for an extraordinary writ.").
II. Failure to Pay Filing Fee or Request IFP Status
All parties instituting any civil action, suit or proceeding in any district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay this filing fee only if the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, 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) (eff. May 1, 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id.
Plaintiff has not prepaid the $400 in filing and administrative fees required to commence a civil action, nor has he submitted a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). Therefore, this case cannot yet proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051.
III. Conclusion and Order
For the reasons set forth above, the Court hereby:
(1) DISMISSES this civil action without prejudice for failing to pay the $400 civil filing and administrative fee or submit a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a);
(2) DENIES Plaintiff's Motion for Declaratory Relief without prejudice as moot (ECF Doc. No. 11);
(3) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete and file a Motion to Proceed IFP which includes a certified copy of his trust account statement for the 6-month period preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2(b); and
(4) DIRECTS the Clerk of the Court to provide Plaintiff with this Court's approved form "Motion and Declaration in Support of Motion to Proceed In Forma Pauperis."; If Plaintiff fails to re-open his case by either prepaying the $400 civil filing fee, or completing and submitting the enclosed Motion to Proceed IFP within that time, this civil action will remain dismissed without prejudice for the reasons set out in this Order. DATED: October 20, 2014
Plaintiff is cautioned that if he chooses to proceed with this action by properly moving to proceed IFP, he will nevertheless "be required to pay the full amount of a filing fee" pursuant to 28 U.S.C. § 1915(b)(1). Moreover, his Complaint will be immediately subject to a sua sponte screening regardless of his fee status pursuant to 28 U.S.C. § 1915(e)(2)(B). See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, or seeks relief from defendants who are immune). As currently pleaded, it appears Plaintiff's Complaint fails to state a claim upon which § 1983 relief may be granted because a person in state custody simply may not use a § 1983 civil rights action to challenge the "fact or duration of his confinement." Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). He must seek federal habeas corpus relief instead. See Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (citing Preiser, 411 U.S. at 489).
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/s/_________
Hon. Anthony J. Battaglia
U.S. District Judge