(PC) Geren v. Fisher

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 RANDY JAMES GEREN, ) Case No.: 1:19-cv-01662-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 R. FISHER, et.al., ) ) FINDINGS AND RECOMMENDATIONS 15 Defendants. ) RECOMMENDATION PLAINTIFF’S MOTION ) TO PROCEED IN FORMA PAUPERIS BE 16 ) DENIED ) 17 ) [ECF No. 3] 18 Plaintiff Randy James Geren is appearing pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983 . 20 Plaintiff filed the instant action on November 25, 2019, along with a motion to proceed in 21 forma pauperis. 22 I. 23 LEGAL STANDARD [24] 28 U.S.C. § 1915 (a)(1) permits a plaintiff to bring a civil action “without prepayment of fees or 25 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff's “is unable 26 to pay such fees or give security therefor.” A prisoner seeking to bring a civil action must, in addition 27 to filing an affidavit, “submit a certified copy of the trust fund account statement . . . for the 6-month 28 period immediately preceding the filing of the complaint . . . obtained from the appropriate official of 1 each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915 (a)(2). 2 II. 3 DISCUSSION 4 Plaintiff has filed an application declaring that, due to his poverty, he is unable to pre-pay the 5 full amount of fees and costs for these proceedings or give security therefor, and that he believes that 6 he is entitled to the relief sought in his complaint. On November 27, 2019, the Court received a 7 certified copy of Plaintiff’s inmate trust account statement showing the activity in Plaintiff’s account 8 for the previous six months. 9 Plaintiff’s certified inmate account statement indicates that he currently has an available sum 10 of $437.30 on account to his credit at San Quentin State Prison. Further, the account statement 11 indicates that, on May 1, 2019, Plaintiff’s beginning balance was $519.36, and that, after numerous 12 withdrawals and other transactions, Plaintiff had $437.30 in his account on November 26, 2019. 13 According to the certified inmate account statement, the average amount deposited in Plaintiff’s 14 account each month is approximately $325.50. 15 Based on the foregoing, the information that Plaintiff has provided to the Court reflects that he 16 is financially able to pre-pay the entire filing fee to commence this action. Although the Ninth Circuit 17 Court of Appeals has held that “the filing fee … should not take the prisoner’s last dollar,” Olivares v. 18 Marshall, 59 F.3d 109, 112 (9th Cir. 1995), in these circumstances, Plaintiff has enough funds to pre19 pay the $400 filing fee and have money left over. Plaintiff has also consistently spent funds on 20 discretionary purchases. See id. (district court entitled to consider an inmate’s choices in spending 21 money, such as between a filing fee and comforts purchased in the prison commissary). 22 Should Plaintiff have additional information to provide the Court, or should his available 23 balance change by the time he receives this order, he may notify the Court. However, the Court has 24 the authority to consider any reasons and circumstances for any change in Plaintiff’s available assets 25 and funds. See also Collier v. Tatum, 722 F.2d 653, 656 (11th Cir. 1983) (district court may consider 26 an unexplained decrease in an inmate’s trust account, or whether an inmate’s account has been 27 depleted intentionally to avoid court costs). [28] 1 Therefore, Plaintiff's application to proceed in forma pauperis must be denied. If Plaintiff 2 || wishes to proceed with this action, Plaintiff must pre-pay the $400.00 filing fee in full. 3 III. 4 ORDER AND RECOMMENDATIONS 5 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 6 || Fresno District Judge to this action. 7 Further, IT IS HEREBY RECOMMENDED that: 8 1. Plaintiff's application to proceed in forma pauperis, (ECF No. 3), be DENIED; and 9 2. Plaintiff be ordered to pay the $400.00 filing fee in full in order to proceed with this 10 action. 11 These Findings and Recommendations will be submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(). Within thirty (30) day 13 || after being served with these Findings and Recommendations, Plaintiff may file written objections 14 || with the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 15 || Recommendations.” Plaintiff is advised that the failure to file objections within the specified time 16 || may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. 17 || Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391 , 18 || 1394 (9th Cir. 1991)). [19] 20 ||} IT IS SO ORDERED. Hl (re 21 |! Dated: _ December 4, 2019 OF " 22 UNITED STATES MAGISTRATE JUDGE