(PC) Cunningham v. Bird

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 RAYSHUN CUNNINGHAM, ) Case No.: 1:22-cv-00306-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 BIRD, et al., ) ) FINDINGS AND RECOMMENDATIONS 15 Defendants. ) RECOMMENDING PLAINTIFF’S MOTION TO ) PROCEED IN FORMA PAUPERIS BE DENIED 16 ) ) (ECF No. 3) 17 ) 18 Plaintiff Rayshun Cunningham is proceeding pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983 . 20 Plaintiff filed the instant complaint on March 16, 2022, 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] 1 period immediately preceding the filing of the complaint ... obtained from the appropriate official of 2 each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915 (a)(2). 3 II. 4 DISCUSSION 5 Plaintiff has filed an application declaring that, due to his poverty, he is unable to pre-pay the 6 full amount of fees and costs for these proceedings or give security therefor, and that he believes that 7 he is entitled to the relief sought in his complaint. Plaintiff attached a copy his inmate statement report 8 from Valley State Prison. (ECF No. 3.) The statement provides the activity in Plaintiff's inmate trust 9 account from September 16, 2021 to March 7, 2022, and reflects that Plaintiff currently has an 10 available sum of $2,094.33 on account to his credit at Valley State Prison. Thus, the available balance 11 in Plaintiff’s account reflects that he can pay the $402.00 filing fee for this action. 12 Based on the foregoing, the information that Plaintiff has provided to the Court reflects that he 13 is financially able to pre-pay the entire filing fee to commence this action. Although the Ninth Circuit 14 Court of Appeals has held that “the filing fee ... should not take the prisoner's last dollar,” Olivares v. 15 Marshall, 59 F.3d 109, 112 (9th Cir. 1995), in these circumstances, it appears Plaintiff has sufficient 16 funds to pre-pay the $402.00 filing fee with money left over. Should Plaintiff have additional 17 information to provide the Court, or should his available balance change by the time he receives this 18 order, he may notify the Court. However, the Court has the authority to consider any reasons and 19 circumstances for any change in Plaintiff's available assets and funds. See also Collier v. Tatum, 722 20 F.2d 653, 656 (11th Cir. 1983) (district court may consider an unexplained decrease in an inmate's 21 trust account, or whether an inmate's account has been depleted intentionally to avoid court costs). 22 Therefore, Plaintiff's motion to proceed in forma pauperis must be denied. If Plaintiff wishes to 23 proceed with this action, Plaintiff must pre-pay the $402.00 filing fee in full. 24 /// 25 /// 26 /// 27 /// 28 /// 1 Il. 2 ORDER AND RECOMMENDATIONS 3 Accordingly, it is HEREBY ORDERED that the Clerk of the Court to randomly assign a 4 || Fresno District Judge to this action. 5 Further, IT IS HEREBY RECOMMENDED that: 6 1. Plaintiff's motion to proceed in forma pauperis, (ECF No. 3), be DENIED; and 7 2. Plaintiff be ordered to pay the $402.00 filing fee in full in order to proceed with this 8 action. 9 These Findings and Recommendations will be submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen (14) days 11 || after being served with these Findings and Recommendations, Plaintiff may file written objections 12 || with the court. The document should be captioned “Objections to Magistrate Judge's Findings and 13 || Recommendations.” Plaintiff is advised that the failure to file objections within the specified time ma 14 || result in the waiver of the “right to challenge the magistrate's factual findings” on appeal. □□□□□□□□□ 15 || Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 16 || 1991)). [17] 18 ||IT IS SO ORDERED. A (Fe _ 19 Dated: _March 17, 2022 OF 20 UNITED STATES MAGISTRATE JUDGE