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Gabba v. Schwarzenegger

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


March 24, 2010

THOMAS J. GABBA, PLAINTIFF,
v.
SCHWARZENEGGER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO IFP APPLICATION

(Doc. 7)

CLERK'S OFFICE IS ORDERED TO RE-SEND NON-PRISONER IFP APPLICATION TO PLAINTIFF AND TO RE-SET DEADLINE

Plaintiff Thomas J. Gabba is a civil detainee proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On March 19, 2010, Plaintiff filed an Objection to this Court's Order to submit a non-prisoner application to proceed in forma pauperis or pay the $350.00 filing fee within thirty days. (Doc. 7.) Therein, Plaintiff objected to the non-prisoner application form in that it referenced 28 U.S.C. § 1915 and to the extent that it implied that plaintiff is a prisoner.

Plaintiff is a civil detainee and not a prisoner within the meaning of the Prison Litigation Reform act as he allege that he is detained pursuant to California Welfare and Institutions Code § 6600 et seq. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). However, anyone who wishes to proceed in forma pauperis must does so under 28 U.S.C. § 1915. Section 1915 does not apply exclusively to prisoners, but rather applies to all parties seeking to pursue litigation who do not have the assets and/or means to do so. Further, the use of the term "prisoner" in connection with section 1915 "means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program" -- which certainly includes civil detainees. The form previously served on Plaintiff is the form that has been approved for use by all persons who are not currently serving prison terms for criminal convictions. There is a different form for use by persons who are serving prison terms for criminal convictions.

Accordingly, Plaintiff's objections are OVERRULED. Since Plaintiff has not paid the $350.00 filing fee, or submitted an application to proceed in forma pauperis on the appropriate form pursuant to 28 U.S.C. § 1915, IT IS HEREBY ORDERED that:

1. The Clerk's Office shall re-send to Plaintiff the attached form for application to proceed in forma pauperis for a non-prisoner;

2. Within thirty days of the date of service of this order, Plaintiff shall submit the completed and signed application to proceed in forma pauperis for a non-prisoner, or in the alternative, pay the $350.00 filing fee for this action.

3. Failure to comply with this order will result in dismissal of this action.

IT IS SO ORDERED.

20100324

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