(PC) Kishor v. Stoller ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHANDRA KISHOR, No. 2:23-cv-01356-TLN-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 JOHN STOLLER, et al., 15 Defendants. 16 17 Plaintiff, a county jail inmate proceeding pro se, filed a civil rights action pursuant to 42 18 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28 19 U.S.C. § 1915. However, the certificate portion of the request which must be completed by 20 plaintiff’s institution of incarceration had not been filled out and plaintiff had not filed a certified 21 copy of the inmate trust account statement for the six-month period immediately preceding the 22 filing of the complaint. See 28 U.S.C. § 1915(a)(2). Therefore, I provided him thirty days to 23 submit a completed in forma pauperis application and a certified copy in support of the 24 application. ECF No. 9. 25 Plaintiff has not complied with that order, and instead, has filed a motion for an extension 26 of time to file an in forma pauperis application. ECF No. 10. In addition to requesting additional 27 time, plaintiff argues that the filing fee should be waived and cites to an unpublished California 28 Court of Appeal case, People v. Duenas, 30 Cal. App. 5th 1157, 1164 (2019). ECF No. 10-1 at 1. 1 | Duenas, however, does not excuse plaintiff from paying the filing fee in federal court. See id. 2 | (holding that “due process of law requires the trial court to conduct an ability to pay hearing and 3 | ascertain a defendant’s present ability to pay before it imposes court facilities and court 4 | operations assessments under . . . section 1465.8 and Government Code section 70373”). 5 | Accordingly, plaintiff will be granted thirty days from this order’s issuance to submit a completed 6 | in forma pauperis application or pay the filing fee. 7 In accordance with the above, IT IS HEREBY ORDERED that: 8 1. Plaintiffs motion for an extension of time to submit an application to proceed in forma 9 | pauperis, ECF No. 10, is granted. 10 2. Plaintiff shall submit, within thirty days from the date of this order, a completed 11 | affidavit in support of the request to proceed in forma pauperis on the form provided by the Clerk 12 | of Court, and a certified copy of the inmate trust account statement for the six-month period 13 | immediately preceding the filing of the complaint. 14 3. The Clerk of Court is directed to send plaintiff a new Application to Proceed In Forma 15 || Pauperis By a Prisoner. 16 4. Plaintiffs failure to comply with this order may result in a recommendation that this 17 | action be dismissed without prejudice. 18 19 IT IS SO ORDERED. 20 ( q oy — Dated: _ September 11, 2023 Q_-——— 21 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28