Carrillo v. Pena

Full title: AARON CARRILLO, Plaintiff, v. M. PENA, et al., Defendants

Court: United States District Court, E.D. California

Date published: Oct 11, 2007

No. CIV S-06-2924 RRB DAD P (E.D. Cal. Oct. 11, 2007)

Opinion

No. CIV S-06-2924 RRB DAD P.

October 11, 2007

ORDER

DALE DROZD, Magistrate Judge

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 72-302 and 28 U.S.C. § 636(b)(1).

Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. §§ 1914(a) 1915(b)(1). An initial partial filing fee of $5.42 will be assessed by this order. See 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 prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be collected and 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. See 28 U.S.C. § 1915(b)(2).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 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. See 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.

A claim should be dismissed for failure to state a claim upon which relief may be granted only if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

Here, plaintiff contends that he was re-validated as an EME gang associate and transferred back to Pelican Bay State Prison for an indeterminate term in the security housing unit (SHU). He names seventeen defendants and brings eight causes of action challenging this action by prison officials. For the following reasons, the complaint will be dismissed with leave to file an amended complaint.

I. Supervisorial Defendants

Plaintiff has named several defendants who hold supervisorial positions, including the warden and associate warden of California State Prison — Sacramento (CSP-Sac) and the chief of inmate appeals. Supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory ofrespondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged.See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

In his complaint, plaintiff does not provide any allegations concerning the involvement of the supervisorial defendants. Plaintiff makes only a vague allegation that supervisory defendants failed to properly train and supervise subordinate employees. This is not sufficient. Should plaintiff decide to names supervisory defendants in his amended complaint, he must provide factual allegations demonstrating that they were directly involved in his gang validation or the alleged constitutional violations.

II. Malicious Misclassification

In his first cause of action, plaintiff claims that defendants violated the Eighth and Fourteenth Amendments by "maliciously and sadistically placing and retaining plaintiff in the SHU despite their knowledge that plaintiff is not an active associate of any prison gang." (Comp., Attach. at 19.) The allegation that a prison disciplinary charge was false does not state a cognizable claim where the prisoner is provided procedural due process protections. See Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986); Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984); Lopez v. Horel, No. C 06-4772 SI (pr), 2006 WL 3511978 (N.D. Cal. Dec. 6, 2006) ("A prisoner has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest. As long as a prisoner is afforded procedural due process in the disciplinary hearing, allegations of a fabricated charge fail to state a claim under § 1983."). Thus, in any amended complaint he should choose to file, plaintiff should not include this cause of action.

III. Conspiracy

Plaintiff also alleges that all the defendants conspired to deprive him of his constitutional rights. In order to prevail on a conspiracy claim under § 1983, a plaintiff must allege and prove some deprivation of a constitutional right which resulted from the alleged conspiracy. See Woodrum v. Woodward County, Okla., 866 F.2d 1121, 1126 (9th Cir. 1989). "A conspiracy occurs only when the parties have reached `a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.'" William Inglis Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014, 1055 (9th Cir. 1981) (quoting American Tobacco Co. v. United States, 328 U.S. 781, 809-10 (1946)). Thus, a plaintiff must allege facts that if proven would show that there was an agreement by the defendants to violate his constitutional rights. See Woodrum, 866 at 1126;Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). While it is not necessary to prove that each participant in a conspiracy know the exact parameters of the plan, they must at least share the general conspiratorial objective. See Fonda, 707 F.2d at 438; see also Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998). Here, plaintiff has not provided sufficient allegations to support a conspiracy claim.

In addition, plaintiff has alleged a conspiracy based on section 1985 of the Civil Rights Act which "proscribes conspiracies to interfere with civil rights." Sanchez v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 1991) (en banc). Section 1985(3) was originally passed as the Ku Klux Klan Act of 1871, and provides:

[i]f two or more persons in any State or Territory conspire . . ., for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(3). Although the purpose of § 1985(3) was to enforce the rights of African Americans and their supporters, it has been extended to protect non-racial groups only if the courts have designated the class in question as a suspect or quasi-suspect classification. Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005). In his amended complaint, if plaintiff intends to pursue this claim, he must identify his membership in a protected class and alleged facts which evidence a conspiracy.See id.

IV. Requirements for Amended Complaint

In his amended complaint, plaintiff must allege facts demonstrating how the conditions complained of resulted in a deprivation of plaintiff's federal constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The amended complaint must allege in specific terms how each named defendant was involved in the deprivation of plaintiff's rights. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976);May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

Plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 15-220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's December 28, 2006 application to proceed in forma pauperis is granted.

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee of $5.42. All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.

3. Plaintiff's complaint is dismissed.

4. Plaintiff is granted thirty days from the date of service of this order to file an amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned to this case and must be labeled "Amended Complaint"; plaintiff must use the form complaint provided by the court; failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed without prejudice.

5. The Clerk of the Court is directed to provide plaintiff with the court's form complaint for a section 1983 action.

INSTRUCTIONS FOR FILING A COMPLAINT BY A PRISONER UNDER THE CIVIL RIGHTS STATUTE, 42 U.S.C. § 1983

I. Scope of Section 1983

An action under Section 1983 is available to challenge violations of the federal constitution or federal statutes which affect the conditions of your confinement or your treatment by government employees while in custody. Although you may ask for and obtain money damages or an injunction under Section 1983, the court cannot issue an order which could affect the length of your sentence in any way. Those types of claims may only be raised through a petition for a writ of habeas corpus. If you want to file a petition for a writ of habeas corpus, you must do so on the correct forms, which are provided by the Clerk of the Court on request.

II. Packet

Three copies of a complaint form are attached to this instruction sheet. In addition, included in the packet are an information sheet for prisoners seeking leave to proceed in forma pauperis (without prepayment of filing fees) and two copies of an application to proceed in forma pauperis. To start an action, the following items must be included:

1. An original and one copy of the complaint. You must keep an additional copy of the complaint for your own records. All copies of the complaint must be identical to the original.

2. Either a completed in forma pauperis application or the $350.00 filing fee.

III. Complaint Form

Your complaint must be legibly handwritten or typewritten. You must sign each copy of the complaint and declare under penalty of perjury that the facts stated in the complaint are correct. If you need additional space to answer a question, you should attach an additional blank page. You are required to state facts in support of each claim. The complaint should refer to the provision of the federal constitution or federal law on which you are relying, but should not contain legal arguments or citations.

IV. Venue

Your complaint should be brought in the Sacramento Division of this court only if one or more of the named defendants is located in the Sacramento Division of the Eastern District of California or if your claim arose in the Sacramento Division of this district. The Sacramento Division of the Eastern District of California is comprised of the following counties: Alpine, Amador, Butte, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Sutter, Tehama, Trinity, Yolo, and Yuba.

Your complaint should be brought in the Fresno Division of this court only if one or more of the named defendants is located in the Fresno Division of the Eastern District of California or if your claim arose in the Fresno Division of this district. The Fresno Division of the Eastern District of California is comprised of the following counties: Fresno, Calaveras, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolumne.

V. Mailing the Forms

When all of the forms described in part II are completed, if you are bringing your case in the Sacramento Division, mail the original and copies to:

Clerk of the U.S. District Court

for the Eastern District of California

501 I Street, Room 4-400

Sacramento, California 95814

If you are bringing your case in the Fresno Division, mail the original and copies to:

Clerk of the U.S. District Court

for the Eastern District of California

2500 Tulare Street

Fresno, California 93721

VI. After the Complaint is Filed

Once the complaint is filed, the court will review it and decide whether to order service of the complaint on the defendants. You will be sent a copy of any order the court issues. Because of the large volume of cases filed by inmates pending in this court, the court WILL NOT ANSWER INQUIRIES concerning the status of your complaint.

You must keep the Clerk of the Court informed of any change of address. If you fail to do so, the Clerk cannot be responsible for your failure to receive Court orders. This could result in the dismissal of your suit.

The Clerk of the Court does not provide copies of documents to litigants, Copies of any volume may be obtained from Attorney's Diversified Services (ADS): 1424 21st Street, Sacramento, CA 95814. Their phone number is 916-441-4396. We will, however, provide copies of dockets at the rate of fifty cents ($0.50) per page. Checks in the exact amount are made payable to "Clerk, USDC." In forma pauperis status does not waive the cost of copies. Therefore you must keep copies of all documents submitted to the court for your own records. FORM TO BE USED BY A PRISONER IN FILING A COMPLAINT UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. § 1983 facts FORM TO BE USED BY A PRISONER IN FILING A COMPLAINT UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. § 1983 facts FORM TO BE USED BY A PRISONER IN FILING A COMPLAINT UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. § 1983 facts

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ___________________________ ____________________ (Name of Plaintiff) (Case Number) ___________________________ (Address of Plaintiff) ___________________________ vs. COMPLAINT ___________________________ ___________________________ ___________________________ (Names of Defendants) I. Previous Lawsuits: A. Have you brought any other lawsuits while a prisoner: Yes No B. If your answer to A is yes, how many?: _____________ Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper using the same outline.) 1. Parties to this previous lawsuit: Plaintiff ______________________________________________________________________________ ______________________________________________________________________________________________________ Defendants _____________________________________________________________________________ ________________________________________________________________________________________ 2. Court (if Federal Court, give name of District; if State Court, give name of County) ________________________________________________________________________________________________ 3. Docket Number ___________________________________________________________________________ 4. Name of judge to whom case was assigned _________________________________________________ 5. Disposition (For example: Was the case dismissed? Was it appealed? Is it still pending?) ________________________________________________________________________________________ 6. Approximate date of filing lawsuit ______________________________________________________ 7. Approximate date of disposition _________________________________________________________ II. Exhaustion of Administrative Remedies A. Is there a grievance procedure available at your institution? Yes No B. Have you filed a grievance concerning the facts relating to this complaint? Yes No If your answer is no, explain why not ___________________________________________________ ______________________________________________________________________________________________________ C. Is the grievance process completed? Yes No III. Defendants (In Item A below, place the full name of the defendant in the first blank, his/her official position in the second blank, and his/her place of employment in the third blank. Use item B for the names, positions and places of employment of any additional defendants.) A. Defendant ________________________________ is employed as __________________________________ _______________________________ at ____________________________________________________________ B. Additional defendants ______________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ IV. Statement of Claim (State here as briefly as possible the of your case. Describe how each defendant is involved, including dates and places. Do not give any legal arguments or cite any cases or statutes. Attach extra sheets if necessary.) ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ V. Relief. (State briefly exactly what you want the court to do for you. Make no legal arguments. Cite no cases or statutes.) ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ Signed this ______ day of _______________, 20__. _______________________________ (Signature of Plaintiff) I declare under penalty of perjury that the foregoing is true and correct. __________________ ______________________________ (Date) (Signature of Plaintiff) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ___________________________ ____________________ (Name of Plaintiff) (Case Number) ___________________________ (Address of Plaintiff) ___________________________ vs. COMPLAINT ___________________________ ___________________________ ___________________________ (Names of Defendants) I. Previous Lawsuits: A. Have you brought any other lawsuits while a prisoner: Yes No B. If your answer to A is yes, how many?: _____________ Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper using the same outline.) 1. Parties to this previous lawsuit: Plaintiff ______________________________________________________________________________ ______________________________________________________________________________________________________ Defendants _____________________________________________________________________________ ________________________________________________________________________________________ 2. Court (if Federal Court, give name of District; if State Court, give name of County) ________________________________________________________________________________________________ 3. Docket Number ___________________________________________________________________________ 4. Name of judge to whom case was assigned _________________________________________________ 5. Disposition (For example: Was the case dismissed? Was it appealed? Is it still pending?) ________________________________________________________________________________________ 6. Approximate date of filing lawsuit ______________________________________________________ 7. Approximate date of disposition _________________________________________________________ II. Exhaustion of Administrative Remedies A. Is there a grievance procedure available at your institution? Yes No B. Have you filed a grievance concerning the facts relating to this complaint? Yes No If your answer is no, explain why not ___________________________________________________ ______________________________________________________________________________________________________ C. Is the grievance process completed? Yes No III. Defendants (In Item A below, place the full name of the defendant in the first blank, his/her official position in the second blank, and his/her place of employment in the third blank. Use item B for the names, positions and places of employment of any additional defendants.) A. Defendant ________________________________ is employed as __________________________________ _______________________________ at ____________________________________________________________ B. Additional defendants ______________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ IV. Statement of Claim (State here as briefly as possible the of your case. Describe how each defendant is involved, including dates and places. Do not give any legal arguments or cite any cases or statutes. Attach extra sheets if necessary.) ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ V. Relief. (State briefly exactly what you want the court to do for you. Make no legal arguments. Cite no cases or statutes.) ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ Signed this ______ day of _______________, 20__. _______________________________ (Signature of Plaintiff) I declare under penalty of perjury that the foregoing is true and correct. __________________ ______________________________ (Date) (Signature of Plaintiff) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ___________________________ ____________________ (Name of Plaintiff) (Case Number) ___________________________ (Address of Plaintiff) ___________________________ vs. COMPLAINT ___________________________ ___________________________ ___________________________ (Names of Defendants) I. Previous Lawsuits: A. Have you brought any other lawsuits while a prisoner: Yes No B. If your answer to A is yes, how many?: _____________ Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper using the same outline.) 1. Parties to this previous lawsuit: Plaintiff ______________________________________________________________________________ ______________________________________________________________________________________________________ Defendants _____________________________________________________________________________ ________________________________________________________________________________________ 2. Court (if Federal Court, give name of District; if State Court, give name of County) ________________________________________________________________________________________________ 3. Docket Number ___________________________________________________________________________ 4. Name of judge to whom case was assigned _________________________________________________ 5. Disposition (For example: Was the case dismissed? Was it appealed? Is it still pending?) ________________________________________________________________________________________ 6. Approximate date of filing lawsuit ______________________________________________________ 7. Approximate date of disposition _________________________________________________________ II. Exhaustion of Administrative Remedies A. Is there a grievance procedure available at your institution? Yes No B. Have you filed a grievance concerning the facts relating to this complaint? Yes No If your answer is no, explain why not ___________________________________________________ ______________________________________________________________________________________________________ C. Is the grievance process completed? Yes No III. Defendants (In Item A below, place the full name of the defendant in the first blank, his/her official position in the second blank, and his/her place of employment in the third blank. Use item B for the names, positions and places of employment of any additional defendants.) A. Defendant ________________________________ is employed as __________________________________ _______________________________ at ____________________________________________________________ B. Additional defendants ______________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ IV. Statement of Claim (State here as briefly as possible the of your case. Describe how each defendant is involved, including dates and places. Do not give any legal arguments or cite any cases or statutes. Attach extra sheets if necessary.) ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ V. Relief. (State briefly exactly what you want the court to do for you. Make no legal arguments. Cite no cases or statutes.) ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ Signed this ______ day of _______________, 20__. _______________________________ (Signature of Plaintiff) I declare under penalty of perjury that the foregoing is true and correct. __________________ ______________________________ (Date) (Signature of Plaintiff)

INFORMATION TO PRISONERS SEEKING LEAVE TO PROCEED WITH A CIVIL ACTION IN FEDERAL COURT IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915

In accordance with 1996 amendments to the in forma pauperis (IFP) statute, as a prisoner you will be obligated to pay the full filing fee of $350.00 for a civil action. If you later file an appeal, the filing fee for the appeal is $455.00.

If you have the money to pay the filing fee, you should send a cashier's check or money order to the court with your complaint, petition, or notice of appeal and, if appropriate, your IFP application.

If you do not have enough money to pay the full filing fee when your action is filed, you can file the action without prepaying the filing fee. However, the court will assess an initial partial filing fee at the time your action is filed. The initial partial filing fee will be equal to 20 percent of the average monthly deposits to your prison or jail account for the six months immediately preceding the filing of the lawsuit, or 20 percent of the average monthly balance in your prison or jail account for that same six month period, whichever is greater. The court will order the agency that has custody of you to take that initial partial filing fee out of your prison or jail account as soon as funds are available and to forward the money to the court.

After the initial partial filing fee has been paid, you will owe the balance of the filing fee. Until the amount of the filing fee is paid in full, each month you will owe 20 percent of your preceding month's income toward the balance. The agency that has custody of you will collect that money and send payments to the court any time the amount in the account exceeds $10.00. The balance of the filing fee may be collected even if the action is later dismissed, summary judgment is granted against you or you fail to prevail at trial.

In order to proceed with an action in forma pauperis you must complete the attached form and return it to the court with your complaint. You must have a prison or jail official complete the Certification section on the back of the form and attach to the form a certified copy of your prison or jail account statement for the last six months. If you submit an incomplete form or do not submit a prison or jail account statement with the form, your request to proceed in forma pauperis will be denied.

Regardless of whether some or all of the filing fee has been paid, the court is required to screen your complaint and to dismiss the complaint if (1) your allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) your complaint does not state a claim on which relief can be granted; or (4) you sue a defendant for money damages and that defendant is immune from liability for money damages.

If you file more than three actions or appeals while you are a prisoner which are dismissed as frivolous or malicious or for failure to state a claim on which relief can be granted, then you will be prohibited from bringing any other actions in forma pauperis unless you are in imminent danger of serious physical injury. APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER CASE NUMBER: 28 U.S.C. § 1915 Have the institution fill out the Certificate portion of this application and attach a certified copy of your prison trust account statement showing transactions for the past six months. and 28 U.S.C. § 1915

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Plaintiff vs. Defendant I, ____________________________, declare that I am the plaintiff in the above-entitled proceeding; that, in support of my request to proceed without prepayment of fees under , I declare that I am unable to pay the fees for these proceedings or give security therefor and that I am entitled to the relief sought in the complaint. In support of this application, I answer the following questions under penalty of perjury: 1. Are you currently incarcerated: Yes No (If "No" DO NOT USE THIS FORM) If "Yes" state the place of your incarceration. _________________________________________ 2. Are you currently employed? Yes No a. If the answer is "Yes" state the amount of your pay. b. If the answer is "No" state the date of your last employment, the amount of your take-home salary or wages and pay period, and the name and address of your last employer. 3. In the past twelve months have you received any money from any of the following sources? a. Business, profession or other self-employment Yes No b. Rent payments, interest or dividends Yes No c. Pensions, annuities or life insurance payments Yes No d. Disability or workers compensation payments Yes No e. Gifts or inheritances Yes No f. Any other sources Yes No If the answer to any of the above is "Yes" describe by that item each source of money and state the amount received what you expect you will continue to receive. Please attach an additional sheet if necessary. 4. Do you have cash or checking or savings accounts? Yes No If "Yes" state the total amount: __________________ 5. Do you own any real estate, stocks, bonds, securities, other financial instruments, automobiles or other valuable property? Yes No If "Yes" describe the property and state its value. _____________________________________________________ 6. Do you have any other assets? Yes No If "Yes" list the asset(s) and state the value of each asset listed. 7. List the persons who are dependent on you for support, state your relationship to each person and indicate how much you contribute to their support. I hereby authorize the agency having custody of me to collect from my trust account and forward to the Clerk of the United States District Court payments in accordance with (b)(2). I declare under penalty of perjury that the above information is true and correct. ________________ _________________________________________ DATE SIGNATURE OF APPLICANT

CERTIFICATE (To be completed by the institution of incarceration)

I certify that the applicant named herein has the sum of $___________ on account to his/her credit at ________________ (name of institution). I further certify that during the past six months the applicant's average monthly balance was $________. I further certify that during the past six months the average of monthly deposits to the applicant's account was $__________.

(Please attach a certified copy of the applicant's trust account statement showing transactions for the past six months.)

________________ _________________________________________ DATE SIGNATURE OF AUTHORIZED OFFICER