United States District Court, S.D. California
WILLIAM Q. HAYES UNITED STATES DISTRICT COURT
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,
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).
Motion to Proceed IFP
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). 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.
. . . 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).
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).
Motion to Appoint Counsel
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. §
Conclusion and Order
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. §
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,