(PC) Matlock v. Kern County et al, No. 1:2019cv01368 - Document 11 (E.D. Cal. 2019)
Court Description: ORDER Directing Clerk of Court to Randomly Assign District Judge to Action; FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's 10 Application to Proceed In Forma Pauperis be Denied signed by Magistrate Judge Stanley A. Boone on 12/04/2019. Referred to Judge O'Neill; Objections to F&R due by 1/9/2020.(Flores, E)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 RICHARD A. MATLOCK, 9 Plaintiff, 10 11 12 Case No. 1:19-cv-01368-SAB (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION v. KERN COUNTY, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED Defendants. 13 (ECF No. 10) 14 THIRTY (30) DAY DEADLINE 15 16 17 18 19 Plaintiff Richard A. Matlock is a federal prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, filed on December 2, 2019. (ECF No. 10.) 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 November 25, 2019 certification by an authorized officer at U.S. Penitentiary 7 Yazoo City, where Plaintiff is currently housed, and a certified copy of Plaintiff’s inmate trust 8 account statement showing the activity in Plaintiff’s account for the previous six months. 9 Plaintiff’s certified inmate account statement indicates that he currently has an available 10 sum of $529.23 on account to his credit at U.S. Penitentiary Yazoo City. Further, the account 11 statement indicates that, on April 30, 2019, Plaintiff’s beginning balance was $377.61, and that, 12 after numerous withdrawals and other transactions, Plaintiff had $529.23 in his account on 13 November 11, 2019. According to the certified inmate account statement, the average amount 14 deposited in Plaintiff’s account each month was $321.91 and the 6-month average daily balance 15 in Plaintiff’s trust account was $350.57. 16 Based on the foregoing, the information that Plaintiff has provided to the Court reflects 17 that he is financially able to pre-pay the entire filing fee to commence this action. Although the 18 Ninth Circuit Court of Appeals has held that “the filing fee … should not take the prisoner’s last 19 dollar,” Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995), in these circumstances, Plaintiff 20 has enough funds to pre-pay the $400 filing fee and have money left over. Plaintiff has also 21 recently spent funds on discretionary purchases. See id. (district court entitled to consider an 22 inmate’s choices in spending money, such as between a filing fee and comforts purchased in the 23 prison commissary). 24 Should Plaintiff have additional information to provide the Court, or should his available 25 balance change by the time he receives this order, he may notify the Court. However, the Court 26 has the authority to consider any reasons and circumstances for any change in Plaintiff’s available 27 assets and funds. See also Collier v. Tatum, 722 F.2d 653, 656 (11th Cir. 1983) (district court 28 may consider an unexplained decrease in an inmate’s trust account, or whether an inmate’s 2 1 account has been depleted intentionally to avoid court costs). Therefore, Plaintiff’s application to proceed in forma pauperis must be denied. If Plaintiff 2 3 wishes to proceed with this action, Plaintiff must pre-pay the $400.00 filing fee in full. 4 III. 5 ORDER AND RECOMMENDATIONS 6 7 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a Fresno District Judge to this action. 8 Further, IT IS HEREBY RECOMMENDED that: 9 1. 10 Plaintiff's application to proceed in forma pauperis, (ECF No. 10), be DENIED; and 11 2. 12 Plaintiff be ordered to pay the $400.00 filing fee in full in order to proceed with this action. 13 These Findings and Recommendations will be submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 15 thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file 16 written objections with the court. The document should be captioned “Objections to Magistrate 17 Judge’s Findings and Recommendations.” Plaintiff is advised that the failure to file objections 18 within the specified time may result in the waiver of the “right to challenge the magistrate’s 19 factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 20 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 23 24 IT IS SO ORDERED. Dated: December 4, 2019 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3
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