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Wright v. Correctional Health Services

July 16, 2009

WAYNE WRIGHT, PLAINTIFF,
v.
CORRECTIONAL HEALTH SERVICES, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Samuel P. King Senior United States District Judge

ORDER DENYING REQUEST TO PROCEED IN FORMA PAUPERIS WITHOUT PREJUDICE, AND DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff Wayne Wright is a state prisoner proceeding pro se. Plaintiff seeks relief for alleged civil rights violations pursuant to 42 U.S.C. § 1983. He has filed a request for leave to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915.

I.

Title 28 U.S.C. § 1915 provides in pertinent part as follows:

[(a)](2) A prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding without prepayment of fees or security therefor, in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.

(b)(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of-

(A) the average monthly deposits to the prisoner's account; or

(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

Here, Plaintiff submitted an amended application to proceed IFP that was was processed in another case he had filed in this court (08-cv-00267-MCE). The application was granted in that other case (08-cv-00267-MCE). Some confusion arose because it was not clear whether the application was meant for this case (08-cv-00280) as well. The application was docketed in both cases, but was given a case number in the other case 08-cv-0267-MCE. A review of the docket sheet in the other case (08-cv-00267-MCE) indicates the order granting that IFP application was returned as undeliverable or as having been sent to the wrong address. The Court will proceed in this case with the assumption that Plaintiff intended to submit the identical IFP application in both cases.

The amended IFP application contains a financial statement of Plaintiff from the Glenn County Jail in Willows, California. However, tn a letter submitted with the application or applications, Plaintiff wrote that "I am no longer at the jail in Sacramento[.]" [Doc. 7, letter dated 3-15-08, at 1]. Plaintiff gave a change of address and stated "I would ask that I receive notice at my home address that all correspondence has been delivered." [Id. at 2]. Earlier (a month before his amended IFP application was submitted), court mail addressed to Plaintiff at his place of incarceration had been returned to the court indicating "not in custody." [Doc. 4]. Later, in September 2008, Plaintiff gave the court another change of address at a different private residence in California. [Doc. 9].

The case was then eventually re-assigned to the undersigned as a visiting district judge. In January of 2009, the court received a new filing in the other case (08-cv-00267) but not in this case (08-cv-00280-SPK) indicating a change of address and indicating that Plaintiff was now incarcerated or had been transferred to a correctional institution in Cumberland, Maryland. That filing (in 08-cv-00267) indicated that Plaintiff had been "transferred" to the facility in Maryland. An order re-assigning this case has been sent to the new address at the Western Correctional Institute in Cumberland, Maryland.

It appears that the amended IFP application is incomplete, or was inapplicable if Plaintiff was not in custody when submitted. In any event, the Court cannot apply the IFP statute based upon the currently-pending application. The IFP statute requires an assessment of an initial partial payment of 20 percent based upon average monthly balances for the prior 6-month period. 28 U.S.C. § 1915(b)(1)(A) & (B). It requires the agency having custody of the prisoner to forward payments each time the amount in the prisoner's current account exceeds $10. 28 U.S.C. § 1915(b)(2). This cannot be done without information from the current custodian in Maryland.

Accordingly, the Court will DENY the application to proceed IFP, but the denial will be without prejudice. The Clerk shall mail plaintiff a copy of the IFP application form and Plaintiff may choose to file a new application. The Court will impose a deadline of 30 days from the service of this order within which to re-file an amended IFP ...


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