(PC)Osejo v. Hurtado ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 SERGIO A. OSEJO, Case Number 1:21-cv-01178-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 12 v. APPLICATION TO PROCEED IN FORMA 13 HURTADO, et al., PAUPERIS BE DENIED 14 Defendants. (ECF No. 2) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 TWENTY-ONE DAYS 17 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 18 19 Sergio Osejo (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 20 filed pursuant to 42 U.S.C. § 1983. 21 Plaintiff filed the complaint commencing this action on July 30, 2021. (ECF No. 1). 22 On that same day, Plaintiff filed an application to proceed in forma pauperis. (ECF No. 2). 23 According to Plaintiff’s Prisoner Trust Fund Account Statement (ECF No 8), Plaintiff’s 24 balance as of the date of the last transaction was $1,262.26. Thus, Plaintiff can afford to pay 25 the filing fee for this action.1 Therefore, the Court will recommend that Plaintiff’s application 26 1 The Court notes that the majority, if not all, of the funds in Plaintiff’s account may be from pandemic 27 stimulus payments. However, Plaintiff has not cited to any law, and the Court is not aware of any, preventing pandemic stimulus payments from being included when determining whether a plaintiff can afford to pay the filing 28 fee. Additionally, other courts in this district have included the funds when making the determination. See, e.g., nnn nee ee nn nen ee NO EEE III IIE OO 1 || to proceed in forma pauperis be denied and that Plaintiff be required to pay the filing fee of 2 $402.00 for this action in full. 3 Based on the foregoing, the Court HEREBY RECOMMENDS that: 4 1. Plaintiff’s application to proceed in forma pauperis be DENIED; and 5 2. Plaintiff be directed to pay the $402.00 filing fee in full if he wants to proceed 6 with this action. 7 These findings and recommendations will be submitted to the United States district 8 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 9 || twenty-one (21) days after being served with these findings and recommendations, Plaintiff 10 file written objections with the Court. The document should be captioned “Objections to 11 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 12 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 13 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 14 |} (9th Cir. 1991)). 15 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 16 || judge to this case. 17 13 IT IS SO ORDERED. ‘9 ll Dated: _ August 9, 2021 □□□ hey 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 || Hammler v. Zydus Pharmacy, 2021 WL 3048380, at *1-2 (E.D. Cal. July 20, 2021) (considering the plaintiff's “economic impact payments” when determining that the plaintiff was “financially able to pay the filing fee”); 27 || Corral v. California Highway Patrol, 2021 WL 2268877, at *1 (E.D. Cal. June 3, 2021) (findings and recommendations pending before district judge) (considering the plaintiffs “pandemic stimulus payments” in 28 |! determining that the “plaintiff has made an inadequate showing of indigency”).