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Gougher v. Smith

United States District Court, S.D. California

May 31, 2018

MARLIN LEE GOUGHER, BOP #71150-097, Plaintiff,
v.
SMITH, Warden of MCC; C.O. OROSCO, Correctional Officer; C.O. Lt. KAAWALOA, Correctional Officer/SHU; C.O. SHAEBORN, Counselor/7th Floor; C.O. Counselor CLEVELAND; C.O. Unit Manager CASTILLO; All Members of SHU Team, Defendants.

          ORDER

          HON. WILLIAM Q. HAYES UNITED STATES DISTRICT COURT

         On March 9, 2018, Plaintiff Marlin Gougher initiated this action by filing the Complaint (ECF No. 1). Plaintiff was formerly a federal pretrial detainee at the Metropolitan Correctional Center (“MCC”) in San Diego, California, but has been convicted and transferred to the Federal Correctional Institution (“FCI”) in Lompoc, California.[1]

         Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2), together with a Motion to Appoint Counsel pursuant to 28 U.S.C. § 1915(e)(1) (ECF No. 3).

         I. Motion to Proceed IFP

         All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a).[2] An action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he nevertheless remains obligated to pay the entire fee in increments regardless of whether his case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” who at the time of filing is “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 or conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 F.3d at 847.

         courts . . . if those proceedings have a direct relation to matters at issue.” (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). According to the Federal Bureau of Prisons (“BOP”) Inmate Locator, Plaintiff is now incarcerated at FCI-Lompoc. SeeInmate Locator, Prisoners seeking leave to proceed IFP must also submit a “certified copy of the[ir] trust fund account statement (or institutional equivalent) . . . for the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. The institution having custody of the prisoner collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and forwards them to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

         Plaintiff has not attached a certified copy of his MCC and/or BOP trust account statements for the 6-month period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Without his certified trust account statements, the Court is unable to assess the appropriate amount of the initial filing fee which is statutorily required to initiate the prosecution of this action. See 28 U.S.C. § 1915(b)(1).

         II. Motion to Appoint Counsel

         Plaintiff has filed a Motion to Appoint Counsel pursuant to 28 U.S.C. § 1915(e)(1) (ECF No. 3). However, 28 U.S.C. § 1915(e)(1) only applies in proceedings in forma pauperis. Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). Because Plaintiff has not been granted leave to proceed IFP, he is not entitled to the appointment of counsel under 28 U.S.C. § 1915(e)(1).

         III. Conclusion and Order

         The Motions to Proceed IFP (ECF No. 2) is DENIED. The Motion to Appoint Counsel (ECF No. 3) is DENIED. This civil action is DISMISSED without prejudice. To re-open his case, Plaintiff must, within forty-five days of this order, either: (1) prepay the full $400 filing fee or (2) file a renewed Motion to Proceed IFP together with the certified prison trust account statements required by 28 U.S.C. § 1915(a)(2).

         The Clerk shall amend the docket to reflect Plaintiffs current address as: Marlin Lee Gougher, BOP Reg. No. 71150-097, Federal Correctional Institution, 3600 Guard Road, Lompoc, California, 93436.

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