(PC) Page v. Gates et al, No. 1:2019cv01359 - Document 5 (E.D. Cal. 2019)

Court Description: ORDER Directing Clerk of Court to Randomly Assign District Judge to Action; FINDINGS and RECOMMENDATIONS Recommending Plaintiff's 2 Application to Proceed In Forma Pauperis be Denied signed by Magistrate Judge Stanley A. Boone on 09/30/2019. Referred to Judge Drozd; Objections to F&R due by 11/4/2019. (Flores, E)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 JASON A. PAGE, 8 Case No. 1:19-cv-01359-SAB (PC) Plaintiff, 9 v. 10 S. GATES, et al., 11 ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED Defendants. 12 (ECF No. 2) 13 THIRTY (30) DAY DEADLINE 14 Plaintiff Jason A. Page is a state prisoner proceeding pro se in this civil rights action 15 16 pursuant to 42 U.S.C. § 1983. On September 26, 2019, Plaintiff initiated this action. (ECF No. 17 1.) 18 19 Currently before the Court is Plaintiff’s application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, filed on September 26, 2019. (ECF No. 2.) 20 I. 21 LEGAL STANDARD 22 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment of 23 fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the 24 plaintiff's “is unable to pay such fees or give security therefor.” A prisoner seeking to bring a civil 25 action must, in addition to filing an affidavit, “submit a certified copy of the trust fund account 26 statement . . . for the 6-month period immediately preceding the filing of the complaint . . . 27 obtained from the appropriate official of each prison at which the prisoner is or was confined.” 28 28 U.S.C. § 1915(a)(2). 1 1 II. 2 DISCUSSION 3 Plaintiff has filed an application declaring that, due to his poverty, he is unable to pre-pay 4 the full amount of fees and costs for these proceedings or give security therefor, and that he 5 believes that he is entitled to the relief sought in his complaint. Plaintiff’s application is 6 supported by a certified inmate statement report printed on September 26, 2019, by an official at 7 Valley State Prison, where Plaintiff is currently housed. The statement provides the activity in 8 Plaintiff’s inmate trust account for the entire six-month period preceding the filing of the 9 complaint. 10 Plaintiff’s certified inmate statement report indicates that he currently has an available 11 sum of $847.50 on account to his credit at Valley State Prison. Further, the statement report 12 indicates that, on March 26, 2019, Plaintiff’s beginning balance was $482.93, and that, after 13 paying for some copies, mail postage, and sales items, Plaintiff had $847.50 in his account on 14 September 25, 2019. During the six-month period prior to the filing of the complaint, the average 15 amount deposited in Plaintiff’s account each month was $196.80 and that the average monthly 16 balance in Plaintiff’s trust account was $621.06. Finally, the certified trust account statement 17 report indicates that Plaintiff has no encumbrances or obligations on the money in his account and 18 that Plaintiff has fulfilled his restitution fine. 19 Based on the foregoing, the information that Plaintiff has provided to the Court reflects that 20 he is financially able to pre-pay the entire filing fee to commence this action. Although the Ninth 21 Circuit Court of Appeals has held that “the filing fee … should not take the prisoner’s last dollar,” 22 Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995), in these circumstances, Plaintiff has 23 sufficient funds to pre-pay the $400 filing fee with money left over. Plaintiff has also recently spent 24 funds on discretionary purchases. See id. (district court entitled to consider an inmate’s choices in 25 spending money, such as between a filing fee and comforts purchased in the prison commissary). 26 Should Plaintiff have additional information to provide the Court, or should his available 27 balance change by the time he receives this order, he may notify the Court. However, the Court 28 has the authority to consider any reasons and circumstances for any change in Plaintiff’s available 2 1 assets and funds. See also Collier v. Tatum, 722 F.2d 653, 656 (11th Cir. 1983) (district court may 2 consider an unexplained decrease in an inmate’s trust account, or whether an inmate’s account has 3 been depleted intentionally to avoid court costs). Therefore, Plaintiff’s application to proceed in forma pauperis must be denied. If Plaintiff 4 5 wishes to proceed with this action, Plaintiff must pre-pay the $400.00 filing fee in full. 6 III. 7 ORDER AND RECOMMENDATIONS 8 9 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a Fresno District Judge to this action. 10 Further, IT IS HEREBY RECOMMENDED that: 11 1. Plaintiff's application to proceed in forma pauperis, (ECF No. 2), be DENIED; and 12 2. Plaintiff be ordered to pay the $400.00 filing fee in full in order to proceed with this 13 action. 14 These Findings and Recommendations will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 16 days after being served with these Findings and Recommendations, Plaintiff may file written 17 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 18 Findings and Recommendations.” Plaintiff is advised that the failure to file objections within the 19 specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” 20 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 21 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 24 IT IS SO ORDERED. Dated: September 30, 2019 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3

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