(PC) Lazier v. Coalinga State Hospital ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 THEODORE R. LAZIER, Case No. 1:21-cv-01362-BAM (PC) 9 Plaintiff, ORDER DENYING MOTION FOR RELIEF FROM FILING FEE 10 v. (ECF No. 12) 11 COALINGA STATE HOSPITAL, et al., ORDER GRANTING EXTENSION OF TIME 12 Defendants. FOR PLAINTIFF TO FILE AMENDED COMPLAINT OR NOTICE OF VOLUNTARY 13 DISMISSAL 14 THIRTY (30) DAY DEADLINE 15 16 Plaintiff Theodore R. Lazier (“Plaintiff”) is a former civil detainee and current Florida 17 state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 18 U.S.C. § 1983. 19 On September 27, 2021, the Court screened the complaint and granted Plaintiff leave to 20 file a first amended complaint within thirty days. (ECF No. 9.) Plaintiff’s first amended 21 complaint is currently due on or before November 1, 2021. 22 Currently before the Court is Plaintiff’s “Motion for Defendants to reimburse Plaintiff for 23 In Forma Pauperis Fee,” filed October 26, 2021. (ECF No. 12.) Plaintiff requests that the Court 24 order defendants as named in the amended complaint1 to reimburse Plaintiff for the court filing 25 fee in this action. Plaintiff states that the same day the amended complaint was to be mailed to 26 Court, Plaintiff received his awaited property. Plaintiff argues that the complaint is not moot as 27 1 The Court notes that as of the date of signing of this order, no amended complaint has been 28 received. 1 civil rights violations still occurred that affected him. Plaintiff states that he is willing to file a 2 notice of voluntary dismissal if the Court orders defendants, or defendants agree, to reimburse 3 Plaintiff for the in forma pauperis fee, as Plaintiff finds it unreasonable to have to pay court fees 4 in order to get defendants to respond to him, to stop violating his civil rights, and to receive his 5 own property. (Id.) 6 First, Plaintiff is informed that the Court lacks jurisdiction to order Defendants to 7 reimburse Plaintiff for payment of the filing fee. As noted above, the original complaint was 8 screened but found not to state a cognizable claim for relief, and no amended complaint has been 9 filed. Therefore, this action is not yet proceeding on a viable legal claim. In addition, no 10 defendants have been served, and the Court does not have personal jurisdiction over defendants or 11 any other staff at Coalinga State Hospital to order the relief requested. Summers v. Earth Island 12 Inst., 555 U.S. 488, 491–93 (2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). 13 The Court’s jurisdiction is limited to the parties in this action and to the viable legal claims upon 14 which this action is proceeding. Summers, 555 U.S. at 491−93; Mayfield, 599 F.3d at 969. 15 As the Court lacks jurisdiction to order the specific relief requested, the Court will instead 16 construe the motion as seeking relief from the filing fee in this action. 17 On September 15, 2021, the Court granted Plaintiff’s motion to proceed in forma pauperis 18 in this action. (ECF No. 8.) In that order, it was explained to Plaintiff that he was obligated to 19 pay the statutory filing fee of $350.00 for this action, in monthly payments of twenty percent of 20 the preceding month’s income credited to his trust account. (Id. at 2.) The Warden of the 21 Graceville Correctional & Rehabilitation Facility or his or her designee was ordered to send to the 22 Clerk of the Court payments from Plaintiff’s account each time the amount in the account exceeds 23 $10.00, until the statutory filing fee is paid in full. (Id. (citing 28 U.S. § 1915(b)(2))). The entire 24 $350.00 filing fee is statutorily required, and must be collected from Plaintiff’s institutional 25 account regardless of the outcome of this action. See, e.g., Myers v. Pulido, No. 1:16-cv-00638- 26 SAB-PC, 2016 WL 6723937, at *1 (E.D. Cal. Nov. 14, 2016). 27 Plaintiff is also reminded that when he completed his application to proceed in forma 28 pauperis, he signed the application which states that “Pursuant to the Prison Litigation Reform 1 Act of 1995, 28 U.S.C. § 1915 (as amended), even if I am granted leave to proceed in forma 2 pauperis, I must pay the entire $350.00 filing fee in full. I AM OBLIGATED TO PAY THE 3 ENTIRE $350.00 FILING FEE REGARDLESS OF THE DISPOSITION OF THIS CASE 4 (including dismissal).” (ECF No. 2, p. 3.) Plaintiff’s eligibility to proceed in forma pauperis has 5 been established and Plaintiff has authorized the withdrawal of funds from his trust account for 6 the purpose of payment of the filing fee, regardless of the disposition of his case. Although 7 Plaintiff may have received the property he was seeking and seek to voluntarily dismiss this 8 action, Plaintiff has failed to demonstrate that any relief from the filing fee is warranted. 9 Plaintiff is free to file a notice of voluntary dismissal of this action, pursuant to Federal 10 Rule of Civil Procedure 41(a)(1)(a)(i). The Court will grant Plaintiff an extension of time for 11 Plaintiff to receive this order and to allow Plaintiff time to submit his first amended complaint or 12 a notice of voluntary dismissal. 13 Accordingly, IT IS HEREBY ORDERED as follows: 14 1. Plaintiff’s motion for relief from filing fee, (ECF No. 12), is DENIED; 15 2. Within thirty (30) days from the date of service of this order, Plaintiff shall either: 16 a. File an amended complaint curing the deficiencies identified by the Court in the 17 September 27, 2021 screening order, (ECF No. 9), or 18 b. File a notice of voluntary dismissal; and 19 3. If Plaintiff fails to file an amended complaint in compliance with the September 27, 20 2021 screening order or a notice of voluntary dismissal, the Court will recommend 21 dismissal of this action, with prejudice, for failure to obey a court order and for 22 failure to state a claim. 23 IT IS SO ORDERED. 24 25 Dated: October 27, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28