(PC) King v. Vera ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY LOUIS KING, Case No.: 1:22-cv-00331-SKO (PC) 12 Plaintiff, ORDER TO PAY FILING FEE, OR, 13 ALTERNATIVELY, TO SUBMIT v. APPLICATION FOR LEAVE TO PROCEED 14 IN FORMA PAUPERIS, OR, TO FILE A N. J. VERA, NOTICE OF VOLUNTARY DISMISSAL 15 WITHOUT PREJUDICE Defendant. 16 (Doc. 5) 17 Plaintiff Larry Louis King, proceeding pro se, initiated this action on September 15, 2021, 18 by filing a document titled “Plaintiff Proceeding in this Civil Litigation with the Motion 19 Requesting a Declaratory Judgment & An Injunction” in the Sacramento Division of the Eastern 20 District of California. (Doc. 1.) 21 II. BACKGROUND 22 On January 12, 2022, Magistrate Judge Deborah Barnes issued an Order directing Plaintiff 23 to submit either the $402 filing fee or a properly completed application to proceed in forma 24 pauperis (“IFP”). Plaintiff was directed to do so within 30 days of the date of the Order. (Doc. 4.) 25 On February 10, 2022, Plaintiff filed a document entitled, “Responding to Order on 1/12/2022.” 26 (Doc. 5.) Plaintiff states he “respectfully request[s] this court to except [sic] plaintiff’s request for 27 this court to (either) dismiss plaintiff’s action without prejudice or grant an injunctive relief by 1 ordering CDCR to answer plaintiff’s (602 administrative appeal log #CSPC-8-20-01522 which 2 has been ongoing for 2 years now.” (Id. at 1-2.) Plaintiff also states he “was (not) seeking to file a 3 1983 civil suit with the honorable court as plaintiff cannot file a 1983 civil suit until plaintiff 4 exhausts his administrative remedies per the prison litigation reform act (exhaustion of 5 administrative remedies).” (Id. at 2.) Plaintiff again asks the court to “dismiss plaintiff’s case 6 (Case No. 2:21-cv-1671 DB) without prejudice” or for “an injunctive order, ordering the prison to 7 comply with order to answer plaintiff’s 602 appeal….” (Id. at 2-3.) Plaintiff states he “was not 8 trying to submit a civil suit 1983” and that he “is currently trying to obtain a lawyer to help him 9 when its time to submit his civil case.” (Id. at 4.) 10 On March 21, 2022, Magistrate Judge Barnes issued an Order transferring the civil action 11 from the Sacramento Division to the Fresno Division as the events giving rise to Plaintiff’s claim 12 – appeal number CSPC-8-20-01522 – arose at California State Prison Corcoran in Kings County. 13 (Doc. 6.) 14 II. DISCUSSION 15 Plaintiff has three options. He can: (1) pay the $402 filing fee; (2) submit a completed 16 application to proceed IFP; or (3) file a notice of voluntary dismissal of this action, without 17 prejudice. Plaintiff will be afforded 30 days from the date of service of this Order within which to 18 comply by paying the filing fee, or submitting the IFP application, or filing a notice of voluntary 19 dismissal. 20 It appears Plaintiff may wish to dismiss this action without prejudice as Plaintiff has 21 acknowledged he has not yet exhausted his administrative remedies – a requirement that must be 22 met prior to filing a civil rights action. If Plaintiff elects to proceed with such a dismissal, he 23 should file a notice of voluntary dismissal with this Court. See Fed. R. Civ. P. 41(a)(1)(i). As 24 noted above, Plaintiff’s other options are to either pay the $402 filing fee or to submit a 25 completed IFP application in order to proceed with this action. 26 Plaintiff is advised this Court will not take any action on his request that the Court issue 27 an order directing prison authorities to “answer” his administrative appeal. The request is not 1 proper.1 The Court will not issue orders directing any defendant to take any action unless and 2 until the Court has screened a plaintiff’s complaint. See 28 U.S.C. § 1915A(a). Plaintiff’s 3 complaint may not be screened for months as this Court is one of the busiest district courts in the 4 nation. Additionally, as noted above, Plaintiff’s intentions concerning the future of this action are 5 unclear as his request will be moot should he elect to voluntarily dismiss this action. 6 III. CONCLUSION AND ORDER 7 Accordingly, within 30 days of the date of service of this Order, Plaintiff shall either (1) 8 pay the filing fee of $402, (2) submit a completed application for leave to proceed IFP, or (3) file 9 a notice of voluntary dismissal of the action with this Court. 10 IT IS SO ORDERED. 11 12 Dated: March 23, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 A federal district court may issue emergency injunctive relief only if it has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 27 350 (1999) (noting that one “becomes a party officially, and is required to take action in that capacity, only upon service of summons or other authority-asserting measure stating the time within which the party must appear to