Plaintiff, a state prisoner proceeding pro se, has filed a civil action on the form complaint for seeking relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff, the only party to appear in this action, has consented to proceed before a United Magistrate Judge pursuant to 28 U.S.C. § 636(c). See Consent filed February 16, 2010.
By order filed November 8, 2010, plaintiff was given a period of
thirty days in which to file a notice of voluntary dismissal pursuant
to Fed. R. Civ. P. 41(a). Plaintiff was cautioned that failure to
voluntarily dismiss this action would result in issuance of an order
requiring him to pay the $350.00 filing fee in accordance with the
provisions of 28 U.S.C. § 1915(b) and an order dismissing this action.
On November 22, 2010, plaintiff filed a document
styled "Notice of Renewal of Judgment on Filing Fee".*fn1
Plaintiff has not filed a notice of voluntary dismissal.
Accordingly, the court will rule on plaintiff's motion to proceed in
forma pauperis and screen the complaint. See 28 U.S.C. § 1915.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be 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 court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
Plaintiff names as the sole defendant, and challenges on federal and state constitutional grounds, California Government Code § 68635. That statute governs waiver of state trial court fees for persons sentenced to state prison or confined in county jail, and provides as follows:
(a) This section applies only to waivers of trial court fees.
(b) Notwithstanding any other provision of this article, a person who is sentenced to the state prison or confined in a county jail shall pay the full amount of the trial court filing fees and costs to the extent provided in this section.
(c) To apply for an initial fee waiver, a person who is sentenced to the state prison or confined in a county jail shall complete, under penalty of perjury, a Judicial Council application form giving the current address of the inmate and a statement that he or she is incarcerated, together with a statement of account for any moneys due to the inmate for the six-month period immediately preceding the application. The form shall be certified by the appropriate official of the Department of Corrections and Rehabilitation or a county jail.
(d) When the pleadings or other papers are filed, the court shall assess and, if funds exist, collect as partial payment, a partial filing fee of 20 percent of the greater of either of the following:
(1) The average monthly deposits to the inmate's account.
(2) The average monthly balance in the inmate's account for the six-month period immediately preceding the application.
(e) After the initial filing fee is partially paid, the inmate shall make monthly payments of 20 percent of the preceding month's income credited to the inmate's account. The Department of Corrections and Rehabilitation, or a county jail, shall forward payments from this account to the clerk of the court each time the ...