Lipsey v. State of California ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FANCY MOORE LIPSEY, Case No. 1:23-cv-00976-ADA-SAB 12 Plaintiff, ORDER DENYING REQUEST FOR EXTENSION OF TIME TO FILE 13 v. APPLICATION TO PROCEED IN FORMA PAUPERIS AND REQUIRING PLAINTIFF 14 STATE OF CALIFORNIA, et al., TO PAY FILING FEE 15 Defendants. (ECF No. 12) 16 DEADLINE: OCTOBER 5, 2023 17 18 Plaintiff Fancy Moore Lipsey filed the complaint in this action on June 23, 2023. (ECF 19 No. 2.) Plaintiff is a state prisoner proceeding with counsel. Plaintiff did not pay the filing fee in 20 this action and instead filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 21 1915. (ECF No. 3.) On July 5, 2023, the Court received Plaintiff’s prisoner trust account 22 statement from the Central California Women’s Facility (CCWF). (ECF No. 6.) The statement 23 provided that as of July 3, 2023, Plaintiff had $20,083.79 in the trust account, and finding the 24 available balance in Plaintiff’s account reflected that Plaintiff could pay the $402.00 filing fee 25 for this action, on July 6, 2023, the Court issued findings and recommendations that the 26 application to proceed in forma pauperis be denied. (ECF No. 8.) The Court’s recommendation 27 specifically stated: 1 Should Plaintiff have additional information to provide the Court, or should Plaintiff’s available balance change by the time he 2 receives this order, he may notify the Court. However, Plaintiff is advised that the Court has the authority to consider any reasons 3 and circumstances for any change in Plaintiff’s available assets and funds. See Collier v. Tatum, 722 F.2d 653, 656 (11th Cir. 1983) 4 (district court may consider an unexplained decrease in an inmate’s trust account, or whether an inmate’s account has been depleted 5 intentionally to avoid court costs). 6 (ECF No. 8 at 2-3.) 7 Plaintiff, still represented by counsel, did not file objections to the findings and 8 recommendations within the time period to do so. (ECF No. 11.) On September 5, 2023, the 9 District Judge adopted the findings and recommendations and ordered Plaintiff to pay the filing 10 fee within thirty (30) days of service of the order. (ECF No. 11.) The filing fee is thus due 11 October 5, 2023. 12 On September 15, 2023, Plaintiff filed a continuance of a proffered deadline to file the in 13 forma pauperis application with an original signature. (ECF No. 12.) Plaintiff’s request 14 indicates she filed an application to proceed in forma pauperis on or about August 14, 2023, and 15 the Court rejected that application on the grounds that it required an original signature.1 Plaintiff 16 contends that the Court provided a September 15, 2023, deadline to file the application with an 17 original signature. However, the District Judge’s order adopting did not discuss any signing 18 deficiency, nor did it include an order to file an application to proceed in forma pauperis to 19 submit an original signature by September 15, 2023. (ECF No. 11.) Therefore, it is not clear if 20 this request was filed mistakenly in this action. Further, Plaintiff’s instant filings were not 21 signed as required pursuant to Local Rule 131(b). 22 In the Court’s view, Plaintiff was ordered to pay the filing fee in this action by October 5, 23 2023, and has not. (ECF No. 11.) The District Judge’s order expressly stated: “Plaintiff is 24 ordered to submit the appropriate filing fee in full no later than thirty (30) days from the date of 25 service of this order; and [] Plaintiff is warned that failure to comply with this order will result in 26 dismissal of this action.” (ECF No. 11 at 2.) Given the fact Plaintiff is represented by counsel, 27 1 The Court notes that a first amended complaint was filed on August 14, 2023, before the date the District Judge adopted the findings and recommendations, without a contemporaneously filed application to proceed in forma ] | the previous recommendation based on the trust statement, the District Judge’s order adopting 2 | that required Plaintiff to pay the filing fee with no order to file an application with an original 3 | signature by September 15, 2023, the Court shall deny Plaintiff's request for an extension of time 4 | to file an application to proceed in forma pauperis containing an original signature. Plaintiff and 5 | Plaintiff's counsel are warned that this action may be summarily dismissed if the filing fee is not 6 | paid by October 5, 2023, as ordered by the District Judge in this action. 7 Based upon the foregoing, it is HEREBY ORDERED that: 8 1. Plaintiff's request for continuance of deadline to file original signature in 9 application to proceed in forma pauperis (ECF No. 12) is DENIED; and 10 2. On or before October 5, 2023, Plaintiff shall pay the filing fee for this action, or 11 this action is subject to dismissal for failure to pay the filing fee in this action, 12 failure to comply with the Court’s order, and failure to prosecute. 13 14 IT IS SO ORDERED. DAM Le 15 | Dated: _ September 18, 2023 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28