Toycen v. United States District Court

FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON Feb 03, 2023 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON BILLY EDWARD TOYCEN, No. 1:22-cv-3155-MKD 8 Plaintiff, ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS 9 v. AND DISMISSING ACTION UNITED STATES DISTRICT COURT and CITY OF YAKIMA MUNICIPAL COURT, 12 Defendants.

13 By Order filed December 5, 2022, the Court directed Plaintiff Billy Edward Toycen, who had filed this pro se civil rights complaint while incarcerated at the Yakima County Jail, ECF No. 1, to show cause why his application to proceed in forma pauperis should be granted. ECF No. 10 at 4. In the alternative, Plaintiff was instructed that he may pay the $402.00 fee ($350.00 filing fee, plus $52.00 administrative fee) for this action. Id. Plaintiff was cautioned that failure to do either would be construed as his consent to dismissal of this action without prejudice for failure to comply with the filing fee requirements of 28 U.S.C. § 1 1914. Id. 2 A copy of that Order was mailed to the residential address Plaintiff provided in Yakima, Washington, on December 5, 2022. ECF No. 10. Plaintiff did not comply with the Court’s directives and has filed nothing further in this action. He did not refute the Court’s finding that he had filed three or more actions that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See id. at 3.

8 The Court finds that Plaintiff has failed to demonstrate that he is eligible to proceed in forma pauperis under 28 U.S.C. § 1915(g), or that he was under imminent danger of serious physical injury when he filed his Complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007) (discussing imminent danger exception to three-strikes rule). Therefore, Plaintiff has lost the privilege of filing this lawsuit in forma pauperis.

14 Although granted the opportunity to do so, Plaintiff did not pay the $402.00 filing fee to commence this action. As a result, the Court dismisses this case without prejudice for failure to comply with the filing fee requirements of 28 17 U.S.C. § 1914.

18 Therefore, IT IS ORDERED: 19 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, is DENIED.

1 2. This action is DISMISSED WITHOUT PREJUDICE for non- payment of the filing fee as required by 28 U.S.C. § 1914.

3 3. The Court certifies that any appeal of this dismissal would not be taken in good faith.

5 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order, enter judgment, provide copies to Plaintiff at his last known address, and CLOSE the file.

8 DATED February 3, 2023. s/Mary K. Dimke 10 MARY K. DIMKE UNITED STATES DISTRICT JUDGE