(PC) Saylor v. Allison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN E. SAYLOR, Case No. 1:21-cv-01284-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE 13 v. FINDINGS AND RECOMENDATIONS TO DENY PLAINTIFF’S MOTION TO 14 KATHLEEN ALLISON, ET. AL. , PROCEED IN FORMA PAUPERIS1 15 Defendants. (Doc. No. 4) 16 FOURTEEN-DAY OBJECTION PERIOD 17 18 Plaintiff Brian E. Saylor, a state prisoner who is proceeding pro se, initiated this action by 19 filing a civil rights complaint under 42 U.S.C. § 1983 on August 24, 2021.2 (Doc. No. 1). 20 Plaintiff seeks leave to proceed in forma pauperis. (Doc. No. 2, “IFP”). The undersigned 21 recommends Plaintiff be denied IFP status and he be required to pay the filing fee in full. 22 I. BACKGROUND 23 Plaintiff is currently confined in Valley State Prison. In his IFP application, Plaintiff 24 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 25 (E.D. Ca. 2019). 26 2 The same day Plaintiff filed another civil rights action proceeding at case no. 1:21-cv-1282-GSA (E.D. Cal.). The two actions appear unrelated and raise different claims. In his other filed action, Plaintiff 27 appears to allege a medical deliberate indifference claim. (Id. at Doc. No. 1). Here, Plaintiff alleges a conditions of confinement claim based on allegedly not having laundry services for a prolonged time. 28 (Doc. No. 1 at 3). 1 declares he is unable to pre-pay the full amount of fees and costs for these proceedings of give 2 security and believes that he is entitled to the relief sought in his complaint. (Doc. No. 2 at 1). A 3 Certification completed by an authorized prison official states Plaintiff (1) currently has an 4 available sum of $1,371.20 in his inmate account; (2) had an average six-month balance of 5 $910.99; and (3) had average deposits of $605.72 over the last six-months. (Id. at 4). Plaintiff’s 6 Income Statement appended to his IFP application reflects deposits of $1,400.00 on July 9, 2021, 7 $1200.00 on August 2, 2021 and $600.00 on August 2, 2021. (Id.). 8 II. APPLICABLE LAW 9 Title 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment 10 of fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the 11 plaintiff’s “is unable to pay such fees or give security therefor.” Under the PLRA, prisoners must 12 pay the full amount of the fee. Id. 1915(b)(1). Thus, when a prisoner brings a civil action, he 13 must, in addition to filing an affidavit, “submit a certified copy of the trust fund account statement 14 . . . for the 6-month period immediately preceding the filing of the complaint . . . obtained from 15 the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 16 1915(a)(2). 17 Proceeding IFP is “a matter of privilege and not right.” Franklin v. Murphy, 745 F.2d 18 1221, 1231 (9th Cir. 1984) (abrogated on different grounds). A determination of indigency rests 19 within the court’s discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 20 1991), reversed on other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the 21 reviewing court to exercise its sound discretion in determining whether the affiant has satisfied 22 the statute's requirement of indigency.”). Although an IFP applicant need not be “destitute” a 23 showing of indigence is required. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339– 24 40 (1948) (recognizing that an ability not to be able to pay for oneself and his dependents “the 25 necessities of life” is sufficient). Thus, a plaintiff must allege indigence “with some particularity, 26 definiteness and certainty” before IFP can be granted. United States v. McQuade, 647 F.2d 938, 27 940 (9th Cir. 1981). Prisoners, unlike non-prisoner litigants, are in state custody “and 28 accordingly have the ‘essentials of life’ provided by the government.” Taylor v. Delatoore, 281 1 F.3d 844, 849 (9th Cir. 2002). The courts are inclined to reject ifp applications where an 2 applicant can pay the filing fee with an acceptable sacrifice to other expenses. See, e.g. Casey v. 3 Haddad, No. 1:21-CV-00855-SKO-PC, 2021 WL 2954009, at *1 (E.D. Cal. June 17, 4 2021), report and recommendation adopted, No. 1:21-CV-00855-DAD-SKO-PC, 2021 WL 5 2948808 (E.D. Cal. July 14, 2021) (finding prior balance of $1000, despite being decreased to 6 $470 shortly before filing action sufficient to pay $402 filing fee); Riddell v. Frye, No. 1:21-CV- 7 01065-SAB-PC, 2021 WL 3411876, at *1 (E.D. Cal. July 9, 2021), report and recommendation 8 adopted, No. 1:21-CV-01065-DAD-SAB-PC, 2021 WL 3472209 (E.D. Cal. Aug. 6, 2021) 9 (finding available balance of $1297.21 sufficient to pay $402 filing fee and denying ifp); Allen v. 10 Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (despite plaintiff initially being permitted to 11 proceed ifp, ordering plaintiff to pay $120 filing fee in full out of $900 settlement proceeds); Ali 12 v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (denying ifp because “plaintiff possessed 13 savings of $450 and the magistrate correctly determined that this amount was more than sufficient 14 to allow the plaintiff to pay the filing fee in this action.”). 15 Finally, lest Plaintiff argue that part or all the deposits emanate from Coronavirus Aid, 16 Relief and Economic Security Act (“CARES Act”) and should be disregarded, the undersigned 17 can conceive of no rational reason for not considering these deposits for purposes of determining 18 Plaintiff’s indigency. Nor is the undersigned aware of binding precedent that prevents “stimulus 19 checks” from being included when making an indigency determinization. Indeed, to the contrary, 20 other courts in this district have included the funds when making the determination. See, e.g., 21 Hammler v. Zydus Pharmacy, 2021 WL 3048380, at *1-2 (E.D. Cal. July 20, 2021) (considering 22 the plaintiff’s “economic impact payments” when determining that the plaintiff was “financially 23 able to pay the filing fee”); Corral v. California Highway Patrol, No. 1:21-CV-00822-DAD-JLT, 24 2021 WL 2268877, at *1 (E.D. Cal. June 3, 2021), report and recommendation adopted, No. 25 1:21-CV-00822-DAD-JLT, 2021 WL 3488309 (E.D. Cal. Aug. 9, 2021) (considering stimulus 26 payments in finding plaintiff not entitled to proceed ifp). 27 III. ANALYSIS 28 Plaintiff’s indigency due to his prisoner status is not axiomatic. While a balance of 1 $1,371.00 appears modest at first blush it is not inconsequential considering Plaintiff does not 2 incur expenses in prison for necessities such as sustenance, housing, and medical care. 3 Although the Ninth Circuit Court of Appeals has held that “the filing fee . . . should not take the 4 prisoner’s last dollar,” Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995), the information 5 provided by Plaintiff reflects that he has sufficient funds to pre-pay the $402.00 filing fee in full 6 to commence this action and still will have adequate funds left over for any incidental personal or 7 commissary expenses. 8 Should Plaintiff wish the Court to consider any additional information or should his 9 available balance change by the time he receives these Findings and Recommendations, he may 10 advise the Court. However, the Court has the authority to consider any reasons and 11 circumstances for any change in Plaintiff's available assets and funds. See also Collier v. Tatum, 12 722 F.2d 653, 656 (11th Cir. 1983) (stating district court may consider an unexplained decrease in 13 an inmate’s trust account, or whether an inmate’s account has been depleted intentionally to avoid 14 court costs). Plaintiff should further advise the Court whether he wishes to proceed in this action 15 or voluntarily dismiss the action if required to pay the full filing fee. 16 Based on the foregoing, the undersigned recommends that Plaintiff's motion to proceed in 17 forma pauperis be denied. If Plaintiff wishes to proceed with this action, Plaintiff must pre-pay 18 the $402.00 filing fee in full. 19 Accordingly, it is ORDERED: 20 The Clerk shall randomly assign a district court judge to this case. 21 It is further RECOMMENDED: 22 1. Plaintiff’s motion for leave to proceed in forma pauperis (Doc. No. 2) be DENIED. 23 2. Plaintiff be required to pay the full $402.00 filing fee, absent which the Court will 24 dismiss this action without prejudice. 25 NOTICE TO PARTIES 26 These findings and recommendations will be submitted to the United States district judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 28 (14) days after being served with these findings and recommendations, a party may file written 1 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 | Findings and Recommendations.” Parties are advised that failure to file objections within the 3 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 4 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 ° | Dated: _ August 27, 2021 Mile. □□□ foareA Hack 7 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28