(PC) Champ v. Secretary of Corrections ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TYE GLENN CHAMP, JR., Case No. 1:23-cv-00336-CDB (PC) 12 Plaintiff, ORDER TO PAY FILING FEE IN FULL, 13 v. SUBMIT APPLICATION TO PROCEED IN FORMA PAUPERIS, OR VOLUNTARILY 14 SECRETARY OF CORRECTIONS, et al., DISMISS THIS ACTION 15 Defendants. 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Tye Glenn Champ, Jr., is a state prisoner proceeding pro se in this civil rights 19 action filed under 42 U.S.C. § 1983. Plaintiff has not paid the $402.00 filing fee or submitted an 20 application to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. 21 On February 27, 2023,1 Plaintiff filed this case in the Northern District of California. 22 (Doc. 1.) Plaintiff requested the Clerk of Court to send him an application to proceed IFP. (Doc. 23 2.) On the same day, the Clerk sent Plaintiff the requested application, accompanied by a cover 24 sheet with the following advisement: 25 26 1 The complaint was received by the Clerk of Court and docketed on March 3, 3023. (Doc. 1.) Pursuant to the mailbox rule, a pleading filed by a pro se prisoner is deemed to be filed as of the date the 27 prisoner delivered it to the prison authorities for mailing to the court clerk. See Houston v. Lack, 487 U.S. 28 266, 270 (1988); Douglas v. Noelle, 567 F.3d 1103, 1108–09 (9th Cir. 2009) (mailbox rule articulated in 1 WARNING: You Must Respond to this Notice. If you do not respond within 28 DAYS from the filing date stamped above, your action will be 2 DISMISSED, the file close and the fee will become due immediately. Filing a 3 Prisoner’s Application and Declaration to Proceed In Forma Pauperis will allow the court to determine whether installment payment of the filing fee 4 should be allowed. 5 (Doc. 3 at 1 (alteration in original).) Therefore, Plaintiff’s response is due on March 31, 2023. His 6 options are to pay the $402.00 filing fee ($350.00 filing fee plus $52.00 administrative fee) in full 7 or complete and file the IFP application. Importantly, the Clerk informed Plaintiff: “Even if you 8 are granted leave to proceed in forma pauperis, you must still pay the $350 filing fee (not the $52 9 administrative fee), but the filing fee will be taken out of your prisoner account in installments.” 10 (Id.) 11 In other words, if Plaintiff wishes to proceed with this action, Plaintiff may either pay the 12 $402.00 filing fee or, with the Court’s permission to proceed IFP, pay the $350.00 statutory 13 filing fee through an initial partial filing fee and monthly payments deducted from Plaintiff’s 14 trust account. 28 U.S.C. § 1915(b). Even if Plaintiff pays the filing fee or a partial fee, the Court 15 must dismiss this case if the action is frivolous, malicious, fails to state a claim upon which relief 16 may be granted, or seeks monetary relief against a defendant who is immune from such relief. Id. 17 § 1915(e)(2); 28 U.S.C. § 1915A(b). 18 The Court has not yet screened the complaint in accordance with 28 U.S.C. § 1915A(a) 19 because Plaintiff must first pay the filing fee or receive permission to proceed IFP. However, the 20 Court has conducted a preliminary review of the complaint. To summarize, Plaintiff sues the 21 Secretary of Corrections and the Board of Parole Hearing (“BPH”) for their “arbitrary, 22 capricious, and deliberate indifference” to the deprivation of his fundamental, constitutional 23 rights. (Doc. 1.) 24 Plaintiff alleges that, on February 28, 2019, the California Department of Corrections and 25 Rehabilitation (“CDCR”), the Warden of Avenal State Prison,2 and the Secretary of Corrections 26 unlawfully prevented Plaintiff’s appearance before the BPH under Proposition 57 (“Prop 57”).3 27 2 CDCR and the Warden of Avenal State Prison are not named defendants. 28 1 Plaintiff alleges, “That permitted an unlawful indefinite detention of this Appellant. Resulting in 2 the continued deprivation of my fundamental rights.” (Id.) Plaintiff asserts violations of the Cruel 3 and Unusual Clause of the Eighth Amendment, the Due Process Clause of the Fourteenth 4 Amendment, and a First Amendment Right to “pursue his freedom.” (Doc. 1 at 4.) Plaintiff 5 alleges these deprivations have caused him to suffer excessive sleep deprivation, depression, 6 anxiety, and difficulty exercising emotional control; impairments to his cognitive, physical, and 7 psychiatric function; and an adverse impact on his ability to maintain and control his life. (Id.) 8 As relief, Plaintiff seeks declaratory relief, compensatory damages, and punitive damages. (Id.) 9 The Court has not conducted a careful analysis of Plaintiff’s allegations and applied the 10 appropriate legal standards to his claims. Upon cursory review, however, the allegations do not 11 appear to support viable constitutional claims against Defendants under section 1983. This does 12 not reflect a finding or ruling by the Court. Rather, Plaintiff is urged to consider the strength of 13 his claims and the risk of losing all or part of the filing fee required if the complaint does not 14 survive screening. 15 Accordingly, it is ORDERED: 16 1. Within thirty (30) days from the date of service of this Order, Plaintiff shall 17 perform one of the following: 18 a. prepay the $402.00 filing fee in full; 19 b. submit the attached application to proceed in forma pauperis, completed 20 and signed; OR 21 c. file a notice of voluntary dismissal. 22 2. Plaintiff’ failure to comply with this Order will result in a recommendation for 23 dismissal of the action without further notice. 24 25 Act of 2016. Under this act, nonviolent prisoners can earn credits by participating in rehabilitative 26 programs and activities, and through sustained good behavior. Prop 57 also established parole process for nonviolent offenders “who demonstrate their release would not pose an unreasonable risk of violence to 27 the community may be eligible for release upon serving the full term of their primary offense when an 28 alternative sentence has been imposed.” CDCR, Proposition 57, https://www.cdcr.ca.gov/proposition57/ 1 3. No requests for extensions of time will be granted absent timely filing 2 establishing good cause. 3 4. The Clerk of Court is directed to provide Plaintiff with a civil rights complaint 4 form. 5 | IT IS SO ORDERED. | Dated: _-Mareh 9, 2023 | hr 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28