(PC) Riddell v. Frye et al, No. 1:2021cv01065 - Document 11 (E.D. Cal. 2021)

Court Description: ORDER ADOPTING 9 FINDINGS and RECOMMENDATIONS ; ORDER DENYING 2 Motion to proceed in forma pauperis, signed by District Judge Dale A. Drozd on 8/6/2021. CASE CLOSED(Martin-Gill, S)

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(PC) Riddell v. Frye et al Doc. 11 Case 1:21-cv-01065-DAD-SAB Document 11 Filed 08/06/21 Page 1 of 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID W. RIDDELL, 12 13 14 15 No. 1:21-cv-01065-DAD-SAB (PC) Plaintiff, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS FRYE, et al., (Doc. No. 9) Defendants. 16 17 Plaintiff David W. Riddell is state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 9, 2021, the assigned magistrate judge issued findings and recommendations, 21 recommending that plaintiff’s application to proceed in forma pauperis (Doc. No. 2) be denied 22 because it was determined that plaintiff had sufficient funds in his trust account to pay the filing 23 fee in full. (Doc. No. 9.) Those findings and recommendations were served on plaintiff and 24 contained notice that any objections thereto were to be filed within fourteen (14) days from the 25 date of service. (Id. at 3.) Plaintiff’s objections were docketed on July 22, 2021. (Doc. No. 10.) 26 27 In his objections, plaintiff argues that he does not have sufficient funds to pay the filing fee in its entirety at this time because the source of his funds is “economic impact payments” from the 28 1 Dockets.Justia.com Case 1:21-cv-01065-DAD-SAB Document 11 Filed 08/06/21 Page 2 of 2 1 Coronavirus Aid, Relief and Economic Security Act (“CARES Act”). (Doc. No. 10 at 2.) The 2 court is not aware of any authority that stands for the proposition that economic impact payments 3 from the CARES Act cannot be considered in determining whether in forma pauperis applicants 4 are able to pay court filing fees, and plaintiff does not provide any such support. 5 Plaintiff also states that if he were to be required to pay the filing fee, he does not have the 6 sufficient resources to pay for further litigation costs such as the service of the complaint. (Id. 7 at 3.) However, Federal Rule of Civil Procedure 4 provides that “[a]t the plaintiff’s request, the 8 court may order that service be made by a United Sates marshal or deputy marshal or by a person 9 specially appointed by the court. The court must so order if the plaintiff is authorized to proceed 10 in forma pauperis under 28 U.S.C. § 1915 . . ..” Fed. R. Civ. P. 4(c)(3). 11 Thus, the objections do not provide a reason to depart from the pending findings and 12 recommendations. In his objections, plaintiff further states that if he is denied the ability to 13 proceed in forma pauperis, he would rather not proceed with this action. (Id.) 14 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo 15 review of this case. Having carefully reviewed the entire file, including plaintiff’s objections, the 16 court finds the findings and recommendations to be supported by the record and proper analysis. 17 Accordingly, 18 1.) The findings and recommendations issued on July 9, 2021 (Doc. No. 9) are adopted in 19 full; 20 2.) Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is denied; 21 3.) At plaintiff’s request, this action is voluntarily dismissed; and 22 4.) The Clerk of the Court is directed to close this action. 23 24 IT IS SO ORDERED. Dated: August 6, 2021 UNITED STATES DISTRICT JUDGE 25 26 27 28 2

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