(PC) Witkin v. Lotersztain

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL WITKIN, No. 2:19-cv-0406 DJC KJN P 12 Plaintiff, 13 v. ORDER 14 MARIANA LOTERSZTAIN, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding pro se with this civil rights action seeking 18 relief under 42 U.S.C. § 1983. Plaintiff was granted leave to proceed in forma pauperis on 19 October 1, 2019. (ECF No. 8.) 20 On December 29, 2023, defendant Lotersztain filed a motion to revoke plaintiff’s in forma 21 pauperis status. Defendant argues that since plaintiff has been released from prison, his financial 22 circumstances have changed, and his previously-granted in forma pauperis status should be 23 revoked, and he should be ordered to submit a new request to proceed in forma pauperis under 28 24 U.S.C. § 1915(a)(1), and the instant action should be dismissed if plaintiff fails to either pay the 25 filing fee or submit a new application to proceed in forma pauperis. 26 Plaintiff has not opposed the motion or otherwise responded. 27 The in forma pauperis statute, 28 U.S.C. § 1915, distinguishes unincarcerated indigent 28 people from incarcerated ones. Under § 1915(a)(1), a non-prisoner plaintiff may file suit without 1 prepaying fees, provided he or she submits an affidavit demonstrating “that the person is unable 2 to pay such fees or give security therefor.” Escobedo v. Applebees, 787 F.3d 1226, 1232 (9th Cir. 3 2015); Ingle v. Cir. City Stores, Inc., 328 F.3d 1165, 1177 (9th Cir. 2003). On the other hand, an 4 indigent prisoner is not exempt from prepayment. 28 U.S.C. § 1915(b)(1). Instead, the prisoner 5 must submit a copy of his or her trust account statement, make an initial payment, followed by 6 subsequent monthly installments, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(1)-(2). 7 “[In forma pauperis] status may be acquired or lost during the course of the litigation, and 8 the court may waive or order payment of costs for any of the benefits that may arise under the 9 statute.” Stehouwer v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), aff’d in part, vacated 10 in part on other grounds sub nom. Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). The court 11 may revoke plaintiff’s in forma pauperis status “if there is sufficient evidence that plaintiff’s 12 financial condition has improved to the point that plaintiff’s economic situation is no longer a 13 significant barrier to maintaining the action.” Murphy v. Jones, 801 F. Supp. 283, 289 (E.D. Mo. 14 1992); see also Carter v. Telectron, Inc., 452 F. Supp. 939, 942 (S.D. Tex. 1976) (“if the 15 allegation of poverty is no longer true because of a subsequent improvement in the economic 16 status of plaintiff, it is within the authority of this Court to dismiss the proceeding… or. . . 17 require that the costs of the litigation to date be paid by plaintiff in lieu of dismissal” (internal 18 citations omitted)). 19 On this record, it is unclear whether or to what extent plaintiff’s financial condition has 20 improved. Thus, plaintiff shall submit a current, fully-completed and signed Application to 21 Proceed in District Court Without Prepaying Fees or Costs (Long Form) (“AO 239”).1 Plaintiff is 22 cautioned that failure to submit the completed and signed form will result in a recommendation 23 that the motion to revoke plaintiff’s in forma pauperis status be granted, and plaintiff will be 24 required to pay the court filing fee in full before this action may continue. If plaintiff is no longer 25 indigent, he will be required to pay the court’s required filing fee of $350.00 plus the $55.00 26 administrative fee, for a total fee of $405.00. See 28 U.S.C. §§ 1914(a). The court’s financial 27 1 This form is available at . 1 | department confirms that to date, plaintiff has paid nothing toward the filing fee imposed in this 2 || action at the time plaintiff was granted leave to proceed in forma pauperis.” 3 Plaintiff is cautioned that failure to submit the completed and signed form will result in a 4 || recommendation that the motion to revoke plaintiff's in forma pauperis status be granted, and 5 | plaintiff will be required to pay the required court filing fees of $405.00 in full before this action 6 || may continue. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Within twenty-one days from the date of this order, plaintiff shall file a fully completed 9 || and signed Application to Proceed in District Court Without Prepaying Fees or Costs (Long 10 || Form) (“AO 239”); and 11 2. Plaintiff is cautioned that failure to submit the completed and signed form will result in 12 || arecommendation that the motion to revoke plaintiffs in forma pauperis status be granted, and 13 || plaintiff will be required to pay the court filing fees of $405.00 in full before this action may 14 | continue. 15 Dated: January 25, 2024 16 AO Norra 17 KENDALL J. Wha UNITED STATES MAGISTRATE JUDGE 18 /witk0406.rev 19 20 21 22 23 24 25 26 | >. . . Litigants proceeding in forma pauperis are not required to pay the $55.00 administrative fee and 27 || are allowed to make payments toward the filing fee. Litigants who are out of custody and not granted leave to proceed in forma pauperis must pay the court’s filing and administrative fees in 28 | full.