(PC) Smith v. Santoro et al, No. 1:2021cv01329 - Document 10 (E.D. Cal. 2021)

Court Description: ORDER DIRECTING Clerk of Court to Randomly Assign a District Judge to this Action; FINDINGS and RECOMMENDATIONS Recommending Denial of 2 Motion to Proceed In Forma Pauperis signed by Magistrate Judge Stanley A. Boone on 11/29/2021. Referred to Judge Unassigned DJ. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY J. SMITH, 12 Plaintiff, 13 14 v. K. SANTORO, et al., 15 Defendants. 16 17 18 19 20 ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:21-cv-01329-SAB (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF MOTION TO PROCEED IN FORMA PAUPERIS (ECF No. 2) Plaintiff Anthony J. Smith is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant complaint on September 3, 2021, along with a motion to proceed in 21 forma pauperis. On September 7, 2021, the Court directed Plaintiff to either pay the filing fee or 22 submit a complete application to proceed in forma pauperis. (ECF No. 4.) After receiving an 23 extension of time, Plaintiff submitted his prison trust account statement. (ECF No. 8.) 24 I. 25 LEGAL STANDARD 26 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment of fees or 27 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff's “is unable 28 to pay such fees or give security therefor.” A prisoner seeking to bring a civil action must, in addition 1 1 to filing an affidavit, “submit a certified copy of the trust fund account statement ... for the 6-month 2 period immediately preceding the filing of the complaint ... obtained from the appropriate official of 3 each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2). 4 II. 5 DISCUSSION 6 Plaintiff has filed an application declaring that, due to his poverty, he is unable to pre-pay the 7 full amount of fees and costs for these proceedings or give security therefor, and that he believes that 8 he is entitled to the relief sought in his complaint. On November 24, 2021, Plaintiff submitted his 9 prisoner trust account statement. (ECF No. 8.) The statement provides the activity in Plaintiff's 10 inmate trust account for approximately six months preceding the filing of the complaint. Plaintiff's 11 certified inmate statement report indicates that he currently has an available sum of $1,089.55 on 12 account to his credit at Kern Valley State Prison. Further, the statement report indicates that, on June 13 9, 2021, the sum of $1,400.00 was deposited to Plaintiff’s account. Although the certified trust 14 account statement report indicates that Plaintiff has an outstanding restitution fine of $6,966.61.00, the 15 available balance in Plaintiff’s account reflects that he can pay the $402.00 filing fee for this action. 16 Based on the foregoing, the information that Plaintiff has provided to the Court reflects that he 17 is financially able to pre-pay the entire filing fee to commence this action. Although the Ninth Circuit 18 Court of Appeals has held that “the filing fee ... should not take the prisoner's last dollar,” Olivares v. 19 Marshall, 59 F.3d 109, 112 (9th Cir. 1995), in these circumstances, it appears Plaintiff has sufficient 20 funds to pre-pay the $402.00 filing fee with money left over. Should Plaintiff have additional 21 information to provide the Court, or should his available balance change by the time he receives this 22 order, he may notify the Court. However, the Court has the authority to consider any reasons and 23 circumstances for any change in Plaintiff's available assets and funds. See also Collier v. Tatum, 722 24 F.2d 653, 656 (11th Cir. 1983) (district court may consider an unexplained decrease in an inmate's 25 trust account, or whether an inmate's account has been depleted intentionally to avoid court costs). 26 Therefore, Plaintiff's motion to proceed in forma pauperis must be denied. If Plaintiff wishes to 27 proceed with this action, Plaintiff must pre-pay the $402.00 filing fee in full. 28 /// 2 1 III. 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. 2), be DENIED; and 7 2. Plaintiff be ordered to pay the $402.00 filing fee in full in order to proceed with this action. 8 These Findings and Recommendations will be submitted to the United States District Judge 9 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). 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 may 14 result in the waiver of the “right to challenge the magistrate's factual findings” on appeal. Wilkerson v. 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. 19 Dated: 20 November 29, 2021 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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