(PS) Spears v. Spears ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAUREN SPEARS, No. 2:21–cv–1472–TLN–CKD PS 12 Plaintiff, ORDER 13 v. (ECF No. 2) 14 BRIAN K. SPEARS, 15 Defendant. 16 17 Plaintiff, who is representing herself in this action, is a county jail inmate and seeks leave 18 to proceed in forma pauperis (“IFP”) with this complaint unrelated to her conditions of 19 confinement.1 (ECF No. 1.) See 28 U.S.C. § 1915. However, plaintiff did not file her IFP 20 application on the form used by this federal district court, so her application is missing certain 21 information required to proceed IFP as a prisoner in federal court. Accordingly, plaintiff’s IFP 22 application is denied for now, although plaintiff is granted the opportunity to re-submit her 23 application on the appropriate form (enclosed with this order). As indicated on the enclosed 24 court-approved form, plaintiff must also provide a certified copy of her prison trust account 25 statement for the six-month period immediately preceding the filing of her complaint. See 28 26 U.S.C. § 1915(a)(2). 27 1 This action proceeds before the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Local 28 Rule 302(c)(21). 1 Plaintiff is also cautioned that, as a prisoner within the meaning of 28 U.S.C. § 1915(h), 2 even if her renewed IFP request is ultimately granted, she will still be required to pay the 3 statutory filing fee of $350.00 if she elects to move forward with this action in federal court. 4 Pursuant to the Prison Litigation Reform Act, prisoners proceeding IFP must pay the filing fee 5 when funds become available in their prison accounts. 28 U.S.C. § 1915(b); Andrews v. 6 Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). Thus, if plaintiff renews her IFP request and the 7 court grants that request, plaintiff will be assessed an initial partial filing fee of 20 percent of the 8 greater of (a) the average monthly deposits to plaintiff’s trust account; or (b) the average monthly 9 balance in plaintiff’s account for the 6-month period immediately preceding the filing of this 10 action. 28 U.S.C. § 1915(b)(1). After payment of that initial partial filing fee, plaintiff will be 11 obligated to make monthly payments of 20 percent of the preceding month’s income credited to 12 her trust account, until the statutory $350 filing fee is paid in full. Id. § 1915(b)(2)-(3). 13 Upon receipt of a complete IFP application—if plaintiff chooses to move forward with 14 this action in this court—the court will substantively screen plaintiff’s complaint to determine 15 whether the action is “frivolous or malicious,” “fails to state a claim on which relief may be 16 granted,” or seeks monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2)(B). 17 ORDER 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is DENIED without 20 prejudice; 21 2. The Clerk of Court is instructed to send plaintiff, in addition to a copy of this order, an 22 Application to Proceed In Forma Pauperis By a Prisoner; 23 3. Within 30 days of this order, plaintiff shall file either (a) a completed application to 24 proceed in forma pauperis, using the enclosed form, or (b) a notice of voluntary dismissal 25 of the action under Federal Rule of Civil Procedure 41(a)(1)(A)(i), in which case no filing 26 fee will be assessed; and 27 //// 28 //// ] 4. Failure to comply with this order will result in a recommendation that this action be 2 dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 3 | ITISSO ORDERED. 4 || Dated: September 16, 2021 Card Kt | (£4 (g— 5 CAROLYN K DELANEY? 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 || 19.spea.1472 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28