(PC) Carlisle v. Kern Valley State Prison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TEVIN DOUGLAS CARLISLE, ) Case No.: 1:21-cv-01286-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 KERN VALLEY STATE PRISON, et al., ) ) FINDINGS AND RECOMMENDATION 15 Defendants. ) RECOMMENDING PLAINTIFF’S MOTION TO ) PROCEED IN FORMA PAUPERIS BE DENIED 16 ) ) (ECF No. 6) 17 ) 18 Plaintiff Tevin Douglas Carlisle is proceeding pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983. 20 Plaintiff filed the instant complaint on August 24, 2021. On August 25, 2021, the Court 21 directed Plaintiff to either pay the filing fee or submit an application to proceed in forma pauperis. 22 (ECF No. 5.) On October 4, 2021, Plaintiff filed a motion to proceed in forma pauperis. (ECF No. 6.) 23 On October 6, 2021, the Court received a copy of Plaintiff’s prison trust fund account statement. 24 (ECF No. 8.) 25 I. 26 LEGAL STANDARD 27 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment of fees or 28 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff's “is unable 1 to pay such fees or give security therefor.” A prisoner seeking to bring a civil action must, in addition 2 to filing an affidavit, “submit a certified copy of the trust fund account statement ... for the 6-month 3 period immediately preceding the filing of the complaint ... obtained from the appropriate official of 4 each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2). 5 II. 6 DISCUSSION 7 Plaintiff has filed an application declaring that, due to his poverty, he is unable to pre-pay the 8 full amount of fees and costs for these proceedings or give security therefor, and that he believes that 9 he is entitled to the relief sought in his complaint. On October 6, 2021, the Court received a certified 10 inmate statement report by an officer at Kern Valley State Prison, where Plaintiff is currently housed. 11 (ECF No. 8.) The statement provides the activity in Plaintiff's inmate trust account for approximately 12 five months preceding the filing of the complaint. Plaintiff's certified inmate statement report 13 indicates that he currently has an available sum of $672.10 on account to his credit at Kern Valley 14 State Prison. Further, the statement report indicates that, on July 9, 2021, the sum of $1,400.00 was 15 deposited to Plaintiff’s account. Although the certified trust account statement report indicates that 16 Plaintiff has an outstanding restitution fine of $240.00, the available balance in Plaintiff’s account 17 reflects that he can pay the $402.00 filing fee for this action. 18 Based on the foregoing, the information that Plaintiff has provided to the Court reflects that he 19 is financially able to pre-pay the entire filing fee to commence this action. Although the Ninth Circuit 20 Court of Appeals has held that “the filing fee ... should not take the prisoner's last dollar,” Olivares v. 21 Marshall, 59 F.3d 109, 112 (9th Cir. 1995), in these circumstances, it appears Plaintiff has sufficient 22 funds to pre-pay the $402.00 filing fee with money left over. Should Plaintiff have additional 23 information to provide the Court, or should his available balance change by the time he receives this 24 order, he may notify the Court. However, the Court has the authority to consider any reasons and 25 circumstances for any change in Plaintiff's available assets and funds. See also Collier v. Tatum, 722 26 F.2d 653, 656 (11th Cir. 1983) (district court may consider an unexplained decrease in an inmate's 27 trust account, or whether an inmate's account has been depleted intentionally to avoid court costs). 28 1 || Therefore, Plaintiff's motion to proceed in forma pauperis must be denied. If Plaintiff wishes to 2 || proceed with this action, Plaintiff must pre-pay the $402.00 filing fee in full. 3 Il. 4 ORDER AND RECOMMENDATIONS 5 Accordingly, it is HEREBY ORDERED that the Clerk of the Court to randomly assign a 6 || Fresno District Judge to this action. 7 Further, IT IS HEREBY RECOMMENDED that: 8 1. Plaintiff's motion to proceed in forma pauperis, (ECF No. 6), be DENIED; and 9 2. Plaintiff be ordered to pay the $402.00 filing fee in full in order to proceed with this 10 action. 11 These Findings and Recommendations will be submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days 13 || after being served with these Findings and Recommendations, Plaintiff may file written objections 14 || with the court. The document should be captioned “Objections to Magistrate Judge's Findings and 15 || Recommendations.” Plaintiff is advised that the failure to file objections within the specified time ma 16 || result in the waiver of the “right to challenge the magistrate's factual findings” on appeal. □□□□□□□□□ 17 || Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 18 || 1991)). 19 20 || IT IS SO ORDERED. Al (Fe _ 21 Dated: _ October 6, 2021 OF 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28