Lewis v. Newsom

Opinion

1 2 3 6 7 DARONTA T. LEWIS, Case No. 23-cv-04394-AMO (PR)

8 Plaintiff, ORDER DIRECTING PLAINTIFF TO FILE NEW IN FORMA PAUPERIS 9 v. APPLICATION

10 GAVIN NEWSOM, et al., 11 Defendants.

12 On August 24, 2023, Plaintiff Daronta T. Lewis commenced this action by filing a civil 13 rights complaint form and a prisoner’s in forma pauperis (“IFP”) application. Dkts. 1, 2. 14 On November 15, 2023, Lewis filed a notice of change of address to a non-prison address, 15 and thus it seems that he has since been released from custody. Dkt. 6. 16 Ordinarily, a plaintiff is permitted to file a civil action in federal court without prepayment 17 of fees or security if he makes affidavit that he is unable to pay such fees or give security therefor. 18 See 28 U.S.C. § 1915(a). But if the plaintiff is a prisoner who alleges that he is unable to pay the 19 full filing fee at the time of filing, he will be required to pay the full amount of the filing fee even 20 if he is granted IFP status. See 28 U.S.C. § 1915(b)(1). This is done by way of an “installment 21 plan,” whereby the court will assess an initial payment, and the prisoner will be required thereafter 22 to make monthly payments of twenty percent of the preceding month’s income credited to the 23 prisoner’s account. See id. However, if a prisoner who seeks leave to proceed IFP is released 24 from prison while his action is pending, he will not be required to pay the full filing fee if IFP 25 status is granted. See, e.g., DeBlasio v. Gilmore, 315 F.3d 396, 399 (4th Cir. 2003) (holding that 26 statutory language, legislative intent, and policy reasons dictate that prisoner granted IFP status 27 when he filed action would not be liable for full amount of filing fee upon release but must be 1 Wrigglesworth, 114 F.3d 601, 613 (6th Cir. 1997) (same), McGann v. Comm’r, Soc. Sec. Admin., 2 } 96 F.3d 28, 29-30 (2d Cir. 1996) (same). 3 Because Lewis is no longer incarcerated, in order for the Court to assess whether he is 4 entitled to proceed IFP he must apply to proceed IFP under the general provisions of 28 U.S.C. 5 § 1915(a)(1). If, based upon the information provided by Lewis, the Court grants Lewis leave to 6 proceed IFP, the Court will proceed to review the complaint under section 1915(e)(2).' If the 7 Court determines that Lewis is not entitled to IFP status, he will be required to pay the full filing 8 fee or the action will be dismissed. 9 Accordingly, Lewis is hereby ORDERED to file a new application to proceed IFP. Lewis 10 shall answer all questions in the attached application and shall provide any requisite 11 documentation. He shall file his completed application within twenty-eight (28) days of the date 12 of this Order. The failure to do so will result in the dismissal of this action without prejudice.

2 13 Lewis’s prior prisoner’s application to proceed IFP is DENIED as moot. Dkt. 2.

v 14 The Clerk is directed to send Lewis a blank non-prisoner IFP application form. © 15 This Order terminates Docket No. 2.

) Dated: January 2, 2024

Z 18 HO - 19 : ARACELI MARTINEZ-OLGUIN 20 United States District Judge 21 22 23 24 25 26 27 28 ' Under this section, the Court is required to conduct a preliminary screening for frivolity, failure to state a claim, or immune defendants in any IFP action.