United States District Court, E.D. California
THIRD
ORDER DIRECTING PLAINTIFF TO SUBMIT APPLICATION TO PROCEED IN
FORMA PAUPERIS OR PAY FILING FEE (ECF Nos. 6, 11) ORDER
DENYING PLAINTIFF'S REQUEST TO CONVERT THIS CASE TO A
PROCEEDING UNDER 28 U.S.C. § 2241 (ECF No. 16) ORDER
DENYING WITHOUT PREJUDICE PLAINTIFF'S REQUESTS TO APPOINT
COUNSEL AND FOR COPIES (ECF No. 16)
Plaintiff
is a federal prisoner proceeding pro se in a civil
rights action pursuant to Bivens vs. Six Unknown
Agents, 403 U.S. 388 (1971). Plaintiff has not paid the
$400.00 filing fee, or submitted an application to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915.
On July
18, 2019, the Court issued an order directing Plaintiff to
submit, within 45 days, a completed and signed application to
proceed in forma pauperis or, in the alternative, to
pay the $400 filing fee for this action. The Court warned
that failure to comply with the order would result in the
dismissal of this action. (ECF No. 6.)
On
August 5, 2019, Plaintiff filed a motion for preliminary
injunction (ECF No. 7). Plaintiff did not, however, file a
completed and signed application to proceed in forma
pauperis or pay the $400 filing fee as required by the
Court. Accordingly, on October 3, 2019, the Court entered
findings and recommendations recommending that this action be
dismissed for Plaintiffs failure to comply with the
Court's order requiring him to either file a completed
and signed application to proceed in forma pauperis
or pay the $400 filing fee. (ECF No. 11.)
On
October 7, 2019, Plaintiff filed a motion to amend his
complaint. (ECF No. 14.) However, Plaintiff still had not
complied with the Court's order requiring him to file a
completed and signed application to proceed in forma
pauperis or pay the $400 filing fee.
In an
order entered on October 16, 2019, the Court denied without
prejudice the motion to amend the complaint. Further, because
Plaintiff had indicated in his motion to amend that he may
not have received all of his legal mail, out of an abundance
of caution, the Court provided Plaintiff with a final
opportunity to either file a completed and signed application
to proceed in forma pauperis or pay the $400 filing
fee. (ECF No. 15.) The Court explained that this action
cannot proceed unless Plaintiff either pays the $400 filing
fee or is allowed to proceed in forma pauperis, and
that Plaintiff will not be allowed to proceed in forma
pauperis until he submits a completed and signed
application to proceed in forma pauperis that makes
the requisite showing under 28 U.S.C. § 1915(a).
(Id.) The Court provided Plaintiff with an
application to proceed in forma pauperis, a copy of
the Court's previous order directing Plaintiff to file an
in forma pauperis application or pay the filing fee,
and a copy of the Court's findings and recommendations,
recommending that this action be dismissed for failure to
prosecute. (See ECF No. 15 (citing ECF Nos. 6, 11.)
A.
Failure to File Application to Proceed In Forma
Pauperis
On
October 29, 2019, Plaintiff filed a response to the
Court's second order to submit an application to proceed
in forma pauperis or pay the $400 filing fee. (ECF
No. 16.) In this response, which is three full handwritten
pages, Plaintiff states that he cannot afford to pay the
filing fee. (Id.) Plaintiff also gives various
explanations for his failure to comply with the court's
orders. (Id.) For example Plaintiff states he
"does not seek to abandon/forfeit his claim. However,
the filing fee agreement contract is arduous."
(Id.) This, and the other explanations Plaintiff
provides, does not adequately explain why Plaintiff, who has
the ability to write and submit three full handwritten pages
in response to the Court's order, is unable to comply
with that order by completing the application to proceed in
forma pauperis, which is a simple two-page form asking
Plaintiff to provide very basic financial information. The
Court will, however, give Plaintiff one final opportunity to
file an application to proceed in forma pauperis or pay the
$400 filing fee. No further opportunities will be
provided.
B.
Request to Convert Case to § 2241 Proceeding
Plaintiff
requests that this action be converted to a § 2241
proceeding, explaining that he never intended to bring a
claim under Bivens vs. Six Unknown Agents, 403 U.S.
388 (1971), but that he instead wants to bring a "2241
conditions of confinement" action, and that Plaintiff
"merely sought to make a claim upon which relief could
be granted due to the myriad and continued 8th
Amendment violations." The Court will deny Plaintiffs
request.
A
Bivens action is the proper remedy for a federal prisoner
making constitutional challenges to the conditions of his
confinement. See Bivens, 433 U.S. 388. In contrast,
challenges to the fact of confinement, or the duration of
that confinement, are properly brought in a proceeding under
28 U.S.C. § 2241. Plaintiff does not state that he is
challenging the fact or duration of his confinement, but
instead states that he is challenging the conditions of his
confinement. A cursory review of Plaintiff s complaint
confirms that he is challenging the conditions of his
confinement. Accordingly, an action under Bivens is
appropriate and the Court will deny Plaintiffs request to
convert this proceeding into a § 2241 proceeding.
However, if Plaintiff wishes to dismiss this Bivens action,
he may do so by filing a notice with the Court stating that
he wants to voluntarily dismiss his case.
C.
Request for Appointment of Counsel
Plaintiff
also requests appointment of counsel, contending that it
"would be a miscarriage of justice not to appoint
counsel." The Court will deny the request without
prejudice.
Plaintiff
does not have a constitutional right to appointed counsel in
this action, Rand v. Rowland,113 F.3d 1520, 1525
(9th Cir. 1997), and the court cannot require an attorney to
represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1).
Mallard v. United States District Court for the Southern
District of Iowa,490 U.S. 296, 298 (1989). However, in
certain exceptional circumstances the ...