Henderson v. Hamilton ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DAE HENDERSON, JR., Case No. 1:21-cv-00697-NONE-SKO 10 Plaintiff, ORDER DISCHARGING JUNE 14, 2021 11 v. O GR RD AE NR T IT NO G S AH PO PW LI CC AA TU IS OE N A TN OD P ROCEED 12 IN FORMA PAUPERIS AND DIRECTING PAYMENT OF INMATE FILING FEE BY 13 JEFFREY Y. HAMILTON, et al., THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 14 Defendants. (Docs. 4, 7) 15 _____________________________________/ 16 17 18 On June 14, 2021, the Court entered an Order to Show Cause requiring Plaintiff Dae 19 Henderson, Jr., a prisoner proceeding pro se, July 8, 2021, to file an amended application to proceed 20 in forma pauperis, to pay filing fee, or to otherwise show cause why the case should not be 21 dismissed.1 (Doc. 4.) On July 12, 2021, Plaintiff filed an amended application to proceed in forma 22 pauperis. (Doc. 7.) Plaintiff’s application is, therefore, untimely. 23 Although the Court may extend time to file a response after the deadline has expired because 24 of “excusable neglect,” Fed. R. Civ. P. 6(b)(1)(B), no such excusable neglect has been articulated – 25 much less shown – here. Notwithstanding this deficiency, in view of the liberal construction of Fed. 26 R. Civ. 6(b)(1) to effectuate the general purpose of seeing that cases are tried on the merits, see 27 28 1 Plaintiff was ordered to take appropriate action within twenty-one (21) days of service of the Order to Show Cause. 1 Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258-59 (9th Cir. 2010), the Court hereby 2 DISCHARGES its June 14, 2021 Order to Show Cause. (Doc. 4.) 3 Plaintiff has made the showing required by 28 U.S.C. § 1915, and, accordingly, the request 4 to proceed in forma pauperis will be granted. Plaintiff is obligated to pay the statutory filing fee of 5 $350.00 for this action. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments 6 in the amount of twenty percent of the preceding month’s income credited to Plaintiff’s trust 7 account. The California Department of Corrections and Rehabilitation is required to send to the 8 Clerk of Court payments from Plaintiff’s account each time the amount in the account exceeds 9 $10.00, until the statutory filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 10 As to the status of his complaint, Plaintiff is advised that, pursuant to 28 U.S.C. § 1915(e)(2), 11 the court must conduct an initial review of every pro se complaint proceeding in forma pauperis to 12 determine whether it is legally sufficient under the applicable pleading standards. The court must 13 dismiss a complaint, or portion thereof, if the court determines that the complaint is legally frivolous 14 or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from 15 a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that 16 the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies 17 in the complaint can be cured by amendment. Plaintiff’s complaint will be screened in due course. 18 If appropriate after the case has been screened, the Clerk of Court will provide Plaintiff with the 19 requisite forms and instructions to request the assistance of the United States Marshal in serving the 20 defendants pursuant to Federal Rule of Civil Procedure 4. 21 In accordance with the above, and good cause appearing therefore, IT IS HEREBY ORDERED 22 that: 23 1. Plaintiff’s application to proceed in forma pauperis (Doc. 7) is GRANTED; 24 2. The Director of the California Department of Corrections and Rehabilitation or an 25 appropriate designee shall collect payments from Plaintiff’s prison trust account in 26 an amount equal to twenty percent (20%) of the preceding month’s income credited 27 to the prisoner’s trust account, and shall forward those payments to the Clerk of 28 Court each time the amount in the account exceeds $10.00, in accordance with 28 1 U.S.C. § 1915(b)(2), until a total of $350.00 has been collected and forwarded to the 2 Clerk of Court. The payments shall be clearly identified by the name and number 3 assigned to this action; 4 3. The Clerk of Court is directed to serve a copy of this order and a copy of Plaintiff’s in 5 forma pauperis application on the Director of the California Department of Corrections 6 and Rehabilitation, via the court’s electronic case filing system (CM/ECF); and 7 4. The Clerk of Court is directed to serve a copy of this order on the Financial Department, 8 U.S. District Court, Eastern District of California, Sacramento Division. 9 IT IS SO ORDERED. 10 11 Dated: July 16, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28