Mackey v. People of the State of California

• Court: District Court, S.D. California
• Decided: May 22, 2020
• Docket: 3:20-cv-00931
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID ERNESTO MACKEY, Case No.: 3:20-cv-00931-GPC-KSC CDCR #1595-8 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO v. PREPAY FILING FEES REQUIRED 14 BY 28 U.S.C. § 1914(a) OR FILE A

15 MOTION TO PROCEED IN FORMA THE PEOPLE OF THE STATE OF PAUPERIS 16 CALIFORNIA, et al., 17 Defendants. 18 19 David Ernesto Mackey (“Plaintiff”), a mentally disordered offender currently 20 involuntarily committed at Coalinga State Hospital, is proceeding pro se in this civil 21 rights action pursuant to 42 U.S.C. Section 1983. (See ECF No. 1, at 4.) Plaintiff has not 22 prepaid the filing fees required by 28 U.S.C. Section 1914(a) or filed a motion to proceed 23 in forma pauperis (“IFP”) pursuant to 28 U.S.C. Section 1915(a). 24 I. Failure to Pay Filing Fee or Request IFP Status 25 All parties instituting any civil action, suit or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 28 1 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 4 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 5 However, if the Plaintiff is a prisoner, and even if he is granted leave to commence 6 his suit IFP, he remains obligated to pay the entire filing fee in “increments,” see 7 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case 8 is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 9 844, 847 (9th Cir. 2002). This is a requirement of the Prison Litigation Reform Act 10 (“PLRA”), which applies to “prisoner[s],” defined as “any person incarcerated or 11 detained in any facility who is accused of, convicted of, sentenced for, or adjudicated 12 delinquent for, violations of criminal law or the terms and conditions of parole, probation, 13 pretrial release, or diversionary program.” 28 U.S.C. § 1915(h). A “civil detainee” is not 14 a “prisoner” within the meaning of the PLRA. See Andrews v. King, 398 F.3d 1113, 15 1122 (9th Cir. 2005); Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000) (person 16 confined under California’s Sexually Violent Predator Act ceased being a “prisoner” for 17 PLRA purposes when he was released from custody by the Department of Corrections); 18 Moreno v. Beebe, No. 15-cv-2913 LAB (WVG), 2016 WL 1045963, at *2 (S.D. Cal. 19 Mar. 15, 2016) (“Because Plaintiff is involuntarily detained at [Coalinga State Hospital] 20 as a result of having been involuntarily committed as a mentally disordered offender he 21 does not currently qualify as a ‘prisoner’ as defined by 28 U.S.C. § 1915(h), and the 22 filing fee provisions of 28 U.S.C. § 1915(b) do not appear applicable to this case.” (citing 23 Page, 201 F.3d at 1140)). 24 Because Plaintiff appears to be involuntarily committed as a mentally disordered 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 administrative fee does not apply to persons granted leave to 28 1 || offender at Coalinga State Hospital, he is not a “prisoner” as defined by 28 U.S.C. 2 ||Section 1915(h). Nevertheless, Plaintiff must either prepay the $400 in filing and 3 || administrative fees required to commence this civil action or submit a properly supported 4 || Motion to Proceed IFP pursuant to 28 U.S.C. Section 1915(a) and Southern District of 5 || California Civil Local Rule 3.2(a), which requires non-prisoner pro se plaintiffs to 6 || provide “a statement of all assets which shows inability to pay initial fees or give 7 |{security ....” Until Plaintiff does so his case cannot proceed. See 28 U.S.C. § 1914(a); 8 || Andrews, 493 F.3d at 1051. 9 Conclusion and Order 10 For the reasons set forth above, the Court hereby: 11 (1) DISMISSES this action sua sponte without prejudice for failure to pay the 12 $400 civil filing and administrative fee or to submit a Motion to Proceed IFP pursuant to 13 U.S.C. Section 1914(a) and Section 1915(a); and 14 (2) GRANTS Plaintiff forty-five (45) days leave from the date this Order is 15 || filed to: (a) prepay the entire $400 civil filing and administrative fee in full; or (b) 16 complete and file a Motion to Proceed IFP which includes an affidavit that complies with 17 ||S.D. Cal. Civ. L.R. 3.2(a). See 28 U.S.C. § 1915(a)(1). 18 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff 19 || with this Court’s approved form “Motion and Declaration in Support of Motion to 20 || Proceed In Forma Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or 21 ||}complete and submit the enclosed Motion to Proceed IFP within 45 days, this action will 22 ||remain dismissed without prejudice based on Plaintiff’s failure to satisfy the fee 23 ||requirements of 28 U.S.C. Section 1914(a) and without further Order of the Court. 24 IT ISSO ORDERED. 25 Dated: May 22, 2020 2 A 26 Hon. athe Coke 27 United States District Judge 28 3