The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER GRANTING DEFENDANTS' MOTION FOR ORDER REQUIRING PLAINTIFF TO PAY FULL CIVIL FILING FEE AND REVOKING ORDER GRANTING PLAINTIFF LEAVE TO PROCEED IN FORMA PURSUANT TO 28 U.S.C. § 1915(g) [Doc. No. 12]
On May 25, 2007, and while incarcerated at California State Prison ("CAL") in Calipatria, California, Plaintiff, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's Complaint alleges several CAL officials violated his Eighth Amendment rights by failing to adequately address his serious medical needs and forcing him to work under conditions which posed a dangerous risk to his compromised physical condition. (See Compl. at 3-11.) Plaintiff seeks both general and punitive damages. (Id. at 14.)
Along with his Complaint, Plaintiff submitted a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2].
Pursuant to 28 U.S.C. § 1914(a), "[p]laintiffs normally must pay $350 to file a civil complaint in federal district court," but 28 U.S.C. § 1915(a)(1) "allows the district court to waive the fee, for most individuals unable to afford it, by granting IFP status." Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, pursuant to the Prison Litigation Reform Act ("PLRA"), filing fees for indigent prisoners are not waived. Id. at 1052. Prisoners may still be granted leave to proceed IFP, but in addition to an affidavit showing an inability to pay, see 28 U.S.C. § 1915(a)(1), they must provide certified copies of their prison trust account statements, id. § 1915(a)(2), and must pay an initial partial filing fee calculated pursuant to statute and dependent on ability to pay. Id. § 1915(b)(1), (2) & (4). Most significantly, prisoners, unlike other litigants granted leave to proceed IFP, remain obligated to pay the entire $350 balance of fees owed in installments. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
On June 12, 2007, this Court found Plaintiff had submitted an affidavit which complied with 28 U.S.C. § 1915(a)(1), and that he had attached a certified copy of his prison trust account statement showing insufficient funds with which to pay any initial partial filing fees pursuant to 28 U.S.C. § 1915(b)(4). (See June 12, 2007 Order [Doc. No. 3] at 2.) Therefore, Plaintiff was granted leave to proceed IFP, but the California Department of Corrections and Rehabilitation ("CDCR") was simultaneously to collect the $350 civil filing fees from Plaintiff's prison trust account in installments and forward them to the Clerk pursuant to 28 U.S.C. § 1915(b)(1). (Id.) In the same Order, the Court screened Plaintiff's Complaint as required by 28 U.S.C. § 1915(e)(2) and § 1915A(b), determined that his allegations were sufficient to survive initial review, and directed the United States Marshal to effect service upon Defendants on Plaintiff's behalf pursuant to 28 U.S.C. § 1915(d) and FED.R.CIV.P. 4(c)(2). (Id. at 2-4.)
On August 28, 2007 and August 29, 2007, Defendants filed a Motion and Amended Motion "Requiring Plaintiff to Pay Filing Fee due to his Three-Strike Status" [Doc. Nos. 12, 13]. Defendants essentially ask the Court to revoke that part of its June 12, 2007 Order granting Plaintiff leave to proceed IFP and to instead Order Plaintiff to pay the entire $350 civil filing mandated by 28 U.S.C. § 1914(a) in full, rather than in installments, before permitting him to proceed with the prosecution of his case. Specifically, Defendants argue that Plaintiff is not entitled to IFP status based on his previous litigation history. See 28 U.S.C. § 1915(g).
Plaintiff has filed a Response to Defendants' Motion [Doc. No. 18], to which Defendants have filed a Reply [Doc. No. 19]. While the Court initially set a hearing date of October 9, 2007, it has vacated that hearing date, finding the matter suitable for decision on the papers as submitted and no oral argument required. See S.D. CAL. CIVLR 7.1(d)(1).
III. 28 U.S.C. § 1915(g)'S "THREE STRIKES"PROVISION
"In general, filing an action IFP is a privilege, not a right." Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999). This privilege is codified in section 1915 of Title 28 of the United States Code, which allows certain impoverished litigants to pursue civil litigation without the full prepayment of fees or costs. Id. at 1177; 28 U.S.C. § 1915(a)(2).
However, regardless of indigence, subsection (g) bars a prisoner from proceeding IFP:
... if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be ...