Opinion
2:22-cv-1768 AC P
09-28-2023
DANIEL KEITH WILSON, Plaintiff, v. JOANNE BECEIGO, et al., Defendants.
ORDER
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a county jail inmate who is proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302
Before this court is plaintiff's motion for immediate release. ECF No. 7. For the reasons stated below, the motion will be denied. In addition, plaintiff will be ordered to show cause why this matter should not be dismissed for failure to comply with a court order.
I. BACKGROUND
On October 18, 2022, plaintiff was ordered to file a completed in forma pauperis affidavit and a certified copy of his prison trust account statement. ECF No. 4. At that time, plaintiff was cautioned that failure to do so would result in a recommendation that this action be dismissed. Id. at 2.
To date, plaintiff has failed to file a properly completed application to proceed in forma pauperis or, in the alternative, to pay the filing fee. The payment of the filing fee in its entirety or a grant of an application to proceed in forma pauperis is required prior to proceeding in a civil action in this court. See 28 U.S.C. §§ 1914(a) 1915(a)(1)-(2). Because plaintiff has not done either despite having been directed to do so, he will be ordered to show cause why this matter should not be dismissed for failure to obey a court order.
II. MOTION FOR IMMEDIATE RELEASE
Because plaintiff has neither paid the filing fee nor filed a properly completed application to proceed in forma pauperis, this case is not yet properly before the court for review. See Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006) (confirming complaint formally filed when court authorizes commencement of suit without prepayment of fees under Section 1915). In any event, pleadings that relate to the validity of an inmate's confinement are not properly brought in a Section 1983 action. See Nettles v. Grounds, 830 F.3d 922, 928 (9th Cir. 2016) cert. denied, 137 S.Ct. 645 (2017) (stating prisoner's claim not necessarily leading to immediate or speedier release from custody falls outside core of habeas corpus). Therefore, the motion for immediate release will be denied.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of Court shall send plaintiff a second copy of the court's Application to Proceed In Forma Pauperis By a Prisoner;
2. Plaintiff's motion for immediate release (ECF No. 7) is DENIED;
3. Within thirty days from the date of this order, plaintiff shall SHOW CAUSE why this matter should not be dismissed for failure to obey a court order; and
4. Plaintiff's filing of the properly completed in forma pauperis application or, in the alternative, his payment of the filing fee in its entirety, will serve to discharge this order to show cause.