(PC) Bland v. Moffett ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOSHUA DAVIS BLAND, Case No. 1:19-cv-01030-JDP 11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTIONS TO 12 v. PROCEED IN FORMA PAUPERIS, DENY PLAINTIFF’S MISCELLANEOUS MOTION, 13 D. MOFFETT, et al., AND REQUIRE PAYMENT OF FILING FEE IN FULL WITHIN TWENTY-ONE DAYS 14 Defendants. ECF Nos. 2, 11, and 13 15 OBJECTIONS DUE WITHIN 14 DAYS 16 ORDER TO ASSIGN CASE TO DISTRICT 17 JUDGE 18 19 Plaintiff Joshua Davis Bland is a state prisoner proceeding without counsel in this civil 20 rights action brought under 42 U.S.C. § 1983. On July 17, 2019, plaintiff filed an application to 21 proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 2. That application contained 22 numerous handwritten edits, stating, among other things, that Bland did “not consent to 28 U.S.C. 23 § 1915(b)(2) as it is unconstitutional.” ECF No. 2 at 2. The provision to which Bland objected is 24 both constitutional and a mandatory precondition for in forma pauperis status. See, e.g., Hendon 25 v. Ramsey, 478 F. Supp. 2d 1214, 1220 (S.D. Cal. 2007) (“[C]ollecting 20 percent of Plaintiff's 26 monthly income for each action he has filed raises no serious constitutional questions.”). On 27 August 2, I signed an order directing Bland to submit a new application. ECF No. 6. On August 28 1 26, Bland filed a second application that contained handwritten edits much like those in his first. 2 ECF No. 11. Then, on August 29, Bland filed a miscellaneous motion that attempted to pay his 3 filing fee with a handwritten promissory note. ECF No. 13. 4 Under the in forma pauperis statute, prisoners are “required to make monthly payments of 5 20 percent of the preceding month’s income credited to the prisoner’s account.” 28 U.S.C. § 6 1915(b)(2). This provision cannot be avoided or waived. See, e.g., Richardson v. Rupert, No. 7 3:14-CV-01415, 2016 WL 951536, at *2 (N.D. Ohio Mar. 14, 2016). Because Bland continues to 8 object to the statute’s payment provision, he remains ineligible for the statute’s benefits. I also 9 find that Bland’s handwritten promissory note is insufficient to pay the filing fee. Cf. Banks v. 10 Duckworth, No. 5:07-CV-214, 2008 WL 728926, at *1 (S.D. Miss. Mar. 14, 2008) (noting that 11 “Plaintiff’s letter and promissory note” are not “an acceptable form of payment for the filing fee 12 in this case”). 13 Order 14 The clerk of court is directed to assign this case to a district judge who will review the 15 findings and recommendations. 16 Findings and Recommendations 17 Based on the foregoing, it is hereby recommended that: 18 1. plaintiff’s in forma pauperis applications, ECF Nos. 2 and 11, be denied; 19 2. plaintiff’s miscellaneous motion, ECF No. 13, be denied; 20 3. plaintiff be required to pay the $400 filing fee in full within twenty-one days of adoption 21 of these findings and recommendations; and 22 4. if plaintiff fails to pay the $400 filing fee in full within twenty-one days of adoption of 23 these findings and recommendations, all pending motions be terminated, and this action 24 be dismissed without prejudice. 25 I submit the findings and recommendations to a district judge under 28 U.S.C. § 26 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 27 Eastern District of California. Within fourteen days of the service of the findings and 28 recommendations, plaintiff may file written objections to the findings and recommendations with 1 | the court and serve a copy on all parties. That document should be captioned “Objections to 2 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 3 | and recommendations under 28 U.S.C. § 636(b)(1)(C). 4 5 IT IS SO ORDERED. ° p : —N prssann — Dated: _ September 5, 2019 7 UNI STATE AGISTRATE JUDGE 8 9 10 | No. 205 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28