(PC) Duran v. Burns ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISAAC DURAN, Case No. 1:21-cv-01290-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 14 J. BURNS, ET. AL., PROCEED IN FORMA PAUPERIS1 15 Defendants. (Doc. No. 2) 16 FOURTEEN-DAY OBJECTION PERIOD 17 18 Plaintiff Isaac Duran, 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. (Doc. No. 1). 20 Plaintiff seeks leave to proceed in forma pauperis. (Doc. Nos. 2, 5 “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 Kern Valley State Prison. In his IFP application, Plaintiff 24 declares he is unable to pre-pay the full amount of fees and costs for these proceedings or give 25 security and believes that he is entitled to the relief sought in his complaint. (Doc. No. 2 at 1). A 26 Certification completed by an authorized prison official on August 26, 2021, reveals Plaintiff had 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Ca. 2019). 1 a balance of $2,578.33 in his inmate trust fund account as of August 22, 2021, when he initiated 2 this action.2 (Doc. No. 5 at 1). Notably, Plaintiff’s Income Statement reflects three deposits 3 immediately before he filed this action: $1,400.00 on July 2, 2021, $1200.00 on August 3, 2021 4 and $600.00 on August 3, 2021. (Id.). 5 II. APPLICABLE LAW 6 Title 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment 7 of fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the 8 plaintiff’s “is unable to pay such fees or give security therefor.” Under the PLRA, prisoners must 9 pay the full amount of the fee. Id. 1915(b)(1). Thus, when a prisoner brings a civil action, he 10 must, in addition to filing an affidavit, “submit a certified copy of the trust fund account statement 11 . . . for the 6-month period immediately preceding the filing of the complaint . . . obtained from 12 the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 13 1915(a)(2). 14 Proceeding IFP is “a matter of privilege and not right.” Franklin v. Murphy, 745 F.2d 15 1221, 1231 (9th Cir. 1984) (abrogated on different grounds). A determination of indigency rests 16 within the court’s discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 17 1991), reversed on other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the 18 reviewing court to exercise its sound discretion in determining whether the affiant has satisfied 19 the statute's requirement of indigency.”). Although an IFP applicant need not be “destitute” a 20 showing of indigence is required. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339– 21 40 (1948) (recognizing that an ability not to be able to pay for oneself and his dependents “the 22 necessities of life” is sufficient). Thus, a plaintiff must allege indigence “with some particularity, 23 definiteness and certainty” before IFP can be granted. United States v. McQuade, 647 F.2d 938, 24 940 (9th Cir. 1981). Prisoners, unlike non-prisoner litigants, are in state custody “and 25 accordingly have the ‘essentials of life’ provided by the government.” Taylor v. Delatoore, 281 26 27 2 Due to a “negotiable hold” hold on the August 3, 2021 deposits of $1200.00 and $600.00 the “available balance reflects $764.82. (Doc. No. 5 at 1-2). It is unclear when the institution releases the “hold.” 28 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. And Plaintiff does not 1 incur expenses in prison for necessities such as sustenance, housing, and medical care. 2 Although the Ninth Circuit Court of Appeals has held that “the filing fee . . . should not take the 3 prisoner’s last dollar,” Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995), the information 4 provided by Plaintiff reflects that he has sufficient funds to pre-pay the $402.00 filing fee in full 5 to commence this action and still will have adequate funds left over for any incidental personal or 6 commissary expenses. 7 Should Plaintiff wish the Court to consider any additional information or should his 8 available balance change by the time he receives these Findings and Recommendations, he may 9 advise the Court. However, the Court has the authority to consider any reasons and 10 circumstances for any change in Plaintiff's available assets and funds. See also Collier v. Tatum, 11 722 F.2d 653, 656 (11th Cir. 1983) (stating district court may consider an unexplained decrease in 12 an inmate’s trust account, or whether an inmate’s account has been depleted intentionally to avoid 13 court costs). Plaintiff should further advise the Court whether he wishes to proceed in this action 14 or voluntarily dismiss the action if required to pay the full filing fee. 15 Based on the foregoing, the undersigned recommends that Plaintiff's motion to proceed in 16 forma pauperis be denied. If Plaintiff wishes to proceed with this action, Plaintiff should be 17 directed to pre-pay the $402.00 filing fee in full. 18 Accordingly, it is ORDERED: 19 The Clerk shall randomly assign a district court judge to this case. 20 It is further RECOMMENDED: 21 1. Plaintiff’s motion for leave to proceed in forma pauperis (Doc. No. 2) be DENIED. 22 2. Plaintiff be required to pay the full $402.00 filing fee, absent which the Court will 23 dismiss this action without prejudice. 24 NOTICE TO PARTIES 25 These findings and recommendations will be submitted to the United States district judge 26 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 27 (14) days after being served with these findings and recommendations, a party may file written 28 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 1 | Findings and Recommendations.” Parties are advised that failure to file objections within the 2 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 3 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 ° Dated: _ October 25, 2021 Kobo Zh. Bareh Hack 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28