Filed: Sep. 26, 2016
Latest Update: Sep. 26, 2016
Summary: ORDER FOLLOWING REMAND FROM THE NINTH CIRCUIT COURT OF APPEALS ORDER GRANTING PETITIONER LEAVE TO AMEND THE PETITION AND ASSERT CLAIMS UNDER 42 U.S.C. 1983 ORDER DIRECTING CLERK'S OFFICE TO SEND PETITIONER APPLICATION TO PROCEED IN FORMA PAUPERIS ERICA P. GROSJEAN , Magistrate Judge . Pursuant to the mandate of the United States Court of Appeals for the Ninth Circuit in the case of Reno Fuentes Rios v. Warden of CSP-Corcoran, Case No. 11-16570, the judgment of the district court w
Summary: ORDER FOLLOWING REMAND FROM THE NINTH CIRCUIT COURT OF APPEALS ORDER GRANTING PETITIONER LEAVE TO AMEND THE PETITION AND ASSERT CLAIMS UNDER 42 U.S.C. 1983 ORDER DIRECTING CLERK'S OFFICE TO SEND PETITIONER APPLICATION TO PROCEED IN FORMA PAUPERIS ERICA P. GROSJEAN , Magistrate Judge . Pursuant to the mandate of the United States Court of Appeals for the Ninth Circuit in the case of Reno Fuentes Rios v. Warden of CSP-Corcoran, Case No. 11-16570, the judgment of the district court wa..
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ORDER FOLLOWING REMAND FROM THE NINTH CIRCUIT COURT OF APPEALS
ORDER GRANTING PETITIONER LEAVE TO AMEND THE PETITION AND ASSERT CLAIMS UNDER 42 U.S.C. § 1983
ORDER DIRECTING CLERK'S OFFICE TO SEND PETITIONER APPLICATION TO PROCEED IN FORMA PAUPERIS
ERICA P. GROSJEAN, Magistrate Judge.
Pursuant to the mandate of the United States Court of Appeals for the Ninth Circuit in the case of Reno Fuentes Rios v. Warden of CSP-Corcoran, Case No. 11-16570, the judgment of the district court was vacated and this case was remanded with instructions that Petitioner should be afforded leave to amend his petition to assert claims under 42 U.S.C. § 1983. (ECF Nos. 18, 19). The fee for § 1983 civil rights cases is $400 ($350 filing fee plus $50 administrative fee), and under the Prisoner Litigation Reform Act, the prisoner is required to pay it by way of deductions from income to the prisoner's trust account, even if granted in forma pauperis status. See 28 U.S.C. § 1915(b)(1).
Accordingly, the Court HEREBY ORDERS that:
1. Petitioner is GRANTED SIXTY (60) days from the date of service of this order in which to assert claims under 42 U.S.C. § 1983;
2. If Petitioner elects to proceed with a civil rights action pursuant to 42 U.S.C. § 1983, Petitioner shall submit an application to proceed in forma pauperis, completed and signed, or in the alternative, pay the $400 filing fee for the civil rights action; and
3. The Clerk's Office is DIRECTED to send Petitioner an application to proceed in forma pauperis.
IT IS SO ORDERED.
INFORMATION TO PRISONERS SEEKING LEAVE TO PROCEED WITH A CIVIL ACTION IN FEDERAL COURT IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915
In accordance with 1996 amendments to the in forma pauperis (IFP) statute, AS A PRISONER YOU WILL BE OBLIGATED TO PAY THE FULL FILING FEE OF $400.00 FOR A CIVIL RIGHTS ACTION, $5.00 FOR A HABEAS CORPUS PETITION, OR $505.00 FOR AN APPEAL.
If you have the money to pay the filing fee, you should send a cashier's check or money order to the court with your complaint, petition, or notice of appeal.
If you do not have enough money to pay the full filing fee when your action is filed, you can file the action without prepaying the filing fee. The court will order the agency that has custody of you to take the filing fee out of your prison or jail trust account if there are available funds, and to forward the money to the court. Until the amount of the filing fee is paid in full, EACH MONTH YOU WILL OWE 20 PERCENT OF YOUR PRECEDING MONTH'S INCOME TOWARD THE BALANCE. The agency that has custody of you will collect that money and send payments to the court any time the amount in the account exceeds $10.00. The balance of the filing fee will be collected even if the action is later dismissed, summary judgment is granted against you, or you fail to prevail at trial.
In order to proceed with an action in forma pauperis you must complete the attached form and return it to the court with your complaint, habeas corpus petition, or appeal. You must attach to the form a certified copy of your prison or jail account statement for the last six months. If you submit an incomplete form or do not submit a prison or jail account statement with the form, your request to proceed in forma pauperis will be denied.
Regardless of whether some or all of the filing fee has been paid, the court is required to screen your complaint and to dismiss the complaint if
1. Your allegation of poverty is untrue;
2. The action is frivolous or malicious;
3. Your complaint does not state a claim on which relief can be granted, or
4. You sue a defendant for money damages and that defendant is immune from liability for money damages.
If you file more than three actions or appeals while you are a prisoner which are dismissed as frivolous or malicious or for failure to state a claim on which relief can be granted, you will be prohibited from bringing any other actions in forma pauperis unless you are in imminent danger of serious physical injury.
Name:___________________________________
CDC No:_________________________________
Address:_________________________________
_________________________________________
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION
CASE NUMBER:
Plaintiff/Petitioner,
vs. APPLICATION TO PROCEED
IN FORMA PAUPERIS
BY A PRISONER
Defendants/Respondent.
I, ____________________________, declare that I am the plaintiff in the above-entitled proceeding; that, in support of my request to proceed without prepayment of fees under 28 U.S.C. section 1915, I declare that I am unable to pay the fees for these proceedings or give security therefor and that I am entitled to the relief sought in the complaint.
In support of this application, I answer the following questions under penalty of perjury:
1. Are you currently incarcerated? ___ Yes ___ No (If "no" DO NOT USE THIS FORM)
State the place of your incarceration. __________________________
2. Are you currently employed (includes prison employment)? ___ Yes ___ No
a. If the answer is "yes" state the amount of your pay. ___________________
b. If the answer is "no" state the date of your last employment, the amount of your take-home
salary or wages and pay period, and the name and address of your last employer.
3. Have you received any money from the following sources over the last twelve months?
a. Business, profession, or other self-employment: ___ Yes ___ No
b. Rent payments, interest or dividends: ___ Yes ___ No
c. Pensions, annuities or life insurance payments: ___ Yes ___ No
d. Disability or workers compensation payments: ___ Yes ___ No
e. Gifts or inheritances: ___ Yes ___ No
f. Any other sources: ___ Yes ___ No
If the answer to any of the above is "yes," describe by that item each source of money. Also state the amount received and what you expect you will continue to receive (attach an additional sheet if necessary).
4. Do you have cash (includes balance of checking or savings accounts)? ___ Yes ___ No
If "yes" state the total amount: ___________
5. Do you own any real estate, stocks, bonds, securities, other financial instruments, automobiles or
other valuable property? ___ Yes ___ No
If "yes" describe the property and state its value: ____________________
6. Do you have any other assets? ___ Yes ___ No
If "yes," list the asset(s) and state the value of each asset listed:
7. List all persons dependent on you for support, stating your relationship to each person listed and
how much you contribute to their support.
IMPORTANT: This form must be dated and signed below in order for the court to consider your application.
I hereby authorize the agency having custody of me to collect from my trust account and forward to the Clerk of the United States District Court payments in accordance with 28 U.S.C. section 1915(b)(2).
________________ ___________________________
DATE SIGNATURE OF APPLICANT
NOTE: Within sixty days from the date of this application you must forward to the court a certified copy of your prison trust account statement showing transactions for the past six months.
