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Baldwin v. California Dep't of Corrections and Rehabilitation

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 15, 2009

GREGORY V. BALDWIN, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff filed a defective application for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff was directed by Order, filed on March 24, 2009 (Docket Entry # 4), to provide a certified copy of his prison trust account for the six month period immediately preceding the filing of his complaint, as well as to provide a completed certificate portion of the request which must be completed by plaintiff's institution. Although plaintiff has failed to respond to the March 24, 2009, Order, it is not entirely clear that the failure to provide the trust account rests with him, rather than High Desert State Prison. See Request, Docket Entry # 3, filed on March 16, 2009. In any event, in light of "motion for emergency injunctive relief," filed on May 13, 2009 (Docket Entry # 8), and plaintiff's apparent effort to provide an in forma pauperis application initially, the court will allow plaintiff to proceed.

The court will find, for the time being, that plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a), and will grant the request to proceed in forma pauperis, but plaintiff will be required to provide, at a minimum a certified copy of his trust account as set forth in the Order, filed on March 24, 2009.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. § 1914(a), 1915(b)(1). The court will find that plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments shall be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

The complaint states a cognizable claim for relief, under the Eighth Amendment, against individual defendants, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. By separately filed Findings and Recommendations, the court will recommend dismissal of an entity defendant.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's request for leave to proceed in forma pauperis is granted at this time, but plaintiff is required, within 30 days, to file a certified copy of his prison trust account for the six month period preceding the filing of his complaint.

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.

3. Service is appropriate for the following defendants: Officer J. Fannon; Officer M. Gray; Sergeant R. Barton; Deputy Warden of High Desert State Prison; and Acting Warden of High Desert State Prison.

4. The Clerk of the Court shall send plaintiff five (5) USM-285 forms, one summons, an instruction sheet and a copy of the complaint filed March 16, 2009.

5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:

a. The completed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for each defendant listed in number 3 above; and

d. Six (6) copies of the endorsed complaint filed March 16, 2009.

6. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

20090515

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