Sims v. Bird

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NELSON CLARK SIMS, Case No.: 23-CV-463 TWR (BLM)

12 Plaintiff, ORDER (1) DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND (2) DISMISSING CIVIL 14 L. BIRD, Warden; K. WILLEY, Fire ACTION WITHOUT PREJUDICE Captain; M. CARILLO, Correctional 15 FOR FAILURE TO PAY FILING Counselor; Y. MENCIAS, Correctional FEES REQUIRED BY 28 U.S.C. 16 Counselor; L. ROLTGEN, Parole Agent; § 1914(a) G. JOSEPH, Parole Agent; HORMOZI, 17 Correctional Officer; L. WALKER, (ECF No. 2) 18 Correctional Counselor; SHARPE, Correctional Counselor; Y. YANG, 19 Correctional Counselor; S. ALATORRE, 20 Parole Agent; and JAN or JOHN DOE, CDCR Employees, 21 Defendants. 22 23 24 Plaintiff Nelson Clark Sims, proceeding pro se, filed this civil action pursuant to 42 25 U.S.C. § 1983 on March 13, 2023, (ECF No. 1, “Compl.”), together with a Motion to 26 Proceed in Forma Pauperis (“IFP”), (ECF No. 2, “Mot.”). Plaintiff’s Complaint and IFP 27 Motion list his custody status as a state prisoner at Valley State Prison in Chowchilla, 28 California. (See Compl. at 1; Mot. at 1.) But on the same day that he filed his Complaint 1 and IFP Motion, Plaintiff also filed a Notice of Change of Address showing that he is out 2 of custody and has a new residential address. (ECF No. 3.) Plaintiff filed his Complaint 3 and Motion after he was already out of custody.1 (See generally Docket.) 4 MOTION TO PROCEED IN FORMA PAUPERIS 5 All parties instituting any civil action, suit, or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $402.2 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Section 1915(a)(2) requires all persons seeking 11 to proceed without full prepayment of fees to file an affidavit that includes a statement of 12 all assets possessed and demonstrates an inability to pay. See Escobedo v. Applebees, 787 13 F.3d 1226, 1234 (9th Cir. 2015). 14 Because Plaintiff is no longer incarcerated, and he was released before he filed his 15 Complaint and IFP Motion, no inmate trust account exists that he can rely on to show his 16 current financial situation. And Plaintiff provided no financial affidavit reflecting his 17 current post-incarceration income, assets, and/or ability to pay. The Court therefore 18 DENIES WITHOUT PREJUDICE Plaintiff’s present IFP Motion. If Plaintiff wishes to 19 further prosecute this action, the Court DIRECTS him to file a supplemental application 20 21 1 The Court has independently confirmed that Plaintiff, who was also formerly identified as 22 California Department of Corrections and Rehabilitation (“CDCR”) Inmate No. BM4474, is no longer in CDCR custody. See CDCR Inmate Locator, https://inmatelocator.cdcr.ca.gov/Results.aspx (last visited 23 March 21, 2023); see also United States v. Basher, 629 F.3d 1161, 1165 n.2 (9th Cir. 2011) (taking judicial notice of Bureau of Prisons’ inmate locator available to the public); Pacheco v. Diaz, No. 1:19-cv-00774- 24 SAB (PC), 2019 WL 5073594, at *2 (E.D. Cal. Sept. 4, 2019) (taking judicial notice of CDCR’s Inmate 25 Locator system); McCoy v. Le, No. 3:21-CV-1755-BAS-LL, 2021 WL 5449004, at *1 n.2 (S.D. Cal. Nov. 22, 2021) (same). 26 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave 28 1 to proceed IFP that documents his current post-release income, assets, and expenses. See 2 28 U.S.C. § 1915(a); see also Townsend v. Rendon, No. 1:21-cv-01120-DAD-SAB (PC), 3 2022 WL 1462181, at *2 (E.D. Cal. April 1, 2022) (directing released inmate to “either 4 pay the filing fee in full or submit a complete[d] application to proceed in forma pauperis 5 by a non-prisoner”); Makoni v. Downs, No. 16cv2335-AJB (WVG), 2016 WL 7210403, at 6 *4 (S.D. Cal. Dec. 13, 2016) (denying released prisoner’s initial IFP motion but granting 7 leave to file supplemental post-release IFP motion); Flynn v. Canlas, No. 15-cv-2115- 8 WQH (PCL), 2015 WL 8492503, at *3 (S.D. Cal. Dec. 10, 2015) (same); Adler v. 9 Gonzalez, No. 1:11-cv-1915-LJO-MJS (PC), 2015 WL 4041772, at *2 (E.D. Cal. July 1, 10 2015) (requiring “updated IFP application” of released prisoner because the 11 “[c]ircumstances that undoubtedly contributed to his impoverishment, i.e., imprisonment, 12 no longer exist”); cf. Escobedo, 787 F.3d at 1234 (noting that “[a]n affidavit in support of 13 an IFP application is sufficient where it alleges that the affiant cannot pay the court costs 14 and still afford the necessities of life”). 15 If Plaintiff elects to file a supplemental IFP motion, he is warned that he may still be 16 required to pay a partial filing fee determined by the Court depending on his ability to pay. 17 See S.D. Cal. CivLR 3.2(d) (“In considering a non-prisoner’s request to proceed in forma 18 pauperis, the Court may, in its discretion, impose a partial filing fee which is less than the 19 full filing fee that is required by law, but which is commensurate with the applicant’s ability 20 to pay.”). Plaintiff is also cautioned that, even if his supplemental application to proceed 21 IFP is granted, his Complaint will immediately be subject to the sua sponte screening 22 required by 28 U.S.C. § 1915(e)(2) and dismissed if it is frivolous or malicious, fails to 23 state a claim, or seeks monetary relief from an immune defendant. See 28 U.S.C. 24 § 1915(e)(2). 25 CONCLUSION 26 In light of the foregoing, the Court: 27 (1) DENIES WITHOUT PREJUDICE Plaintiff’s Motion to Proceed in Forma 28 Pauperis (ECF No. 2); 1 (2) DISMISSES WITHOUT PREJUDICE this civil action for failure to prepay 2 || the filing fees required by 28 U.S.C. § 1914(a); 3 (3) GRANTS Plaintiff forty-five (45) days from the date of this Order in which 4 ||to reopen his case by either: (a) prepaying the full $402 civil filing and administrative fee 5 required by 28 U.S.C. § 1914(a) in one lump sum; or (b) filing a supplemental application 6 ||to proceed IFP that includes an affidavit documenting Plaintiff's current post-release 7 ||income, assets, and expenses. See 28 U.S.C. § 1915(a); and 8 (4) DIRECTS the Clerk of the Court to provide Plaintiff a blank AO 239 (Rev. 9 |101/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long 10 || Form). 11 If Plaintiff chooses not to comply with this Order by either paying the full $402 civil 12 filing and administrative fee in one lump sum or submitting a completed AO 239 13 || supplemental IFP application within forty-five (45) days of the date of this Order, this civil 14 || action will remain dismissed without prejudice and without further order of the Court based 15 Plaintiff's failure to comply with 28 U.S.C. § 1914(a). 16 IT IS SO ORDERED. 17 || Dated: March 27, 2023 —_—— 18 | od (2 ® re 19 Honorable Todd W. Robinson 50 United States District Judge 21 22 23 24 25 26 27 28