(PC) Hammler v. Zydus Pharmacy ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, No. 1:21-cv-00343-NONE-JLT (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 13 v. PLAINTIFF’S MOTION TO PROCEED IN 14 ZYDUS PHARMACY, et al., FORMA PAUPERIS 15 Defendants. (Doc. Nos. 10, 12) 16 17 Plaintiff Allen Hammler is a state prisoner proceeding pro se in this civil rights action 18 under 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 3, 2021, the assigned magistrate judge filed findings and recommendations, 21 recommending that plaintiff’s motion to proceed in forma pauperis (“IFP”) be denied because 22 plaintiff has sufficient funds to pay the filing fee in full. (Doc. No. 12.) The magistrate judge 23 provided plaintiff 14 days to file objections to the findings and recommendations. (Id. at 2.) 24 Plaintiff filed objections on June 21, 2021. (Doc. No. 13.) 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 26 de novo review of this case. Having carefully reviewed the file, including plaintiff’s objections, 27 the court finds the findings and recommendations to be supported by the record and proper analysis. 1 According to the inmate trust account statement attached to his motion, plaintiff had 2 $1,830.45 in his account as of May 14, 2021, (Doc. No. 10 at 4), approximately two weeks before 3 he filed his motion to proceed in forma pauperis. The magistrate judge reasoned that plaintiff did 4 not qualify for IFP status because his account balance is sufficient to pay the $402 filing fee for 5 this action. (Doc. No. 12 at 1); see also 28 U.S.C. § 1915(a)(1); Adkins v. E.I. DuPont de 6 Nemours & Co., 335 U.S. 331, 339 (1948) (to qualify for IFP status, the applicant must show that 7 he “cannot because of his poverty ‘pay or give security for the costs and still be able to provide’ 8 himself and dependents ‘with the necessities of life’”). 9 In his objections, plaintiff does not dispute that he has sufficient funds to pay the filing 10 fee. Rather, he argues that he should not be required to pay the fee because the source of his 11 funds is “economic impact payments.” (Doc. No. 13 at 2-6.) Plaintiff also states that he needs 12 the funds in order “to feed himself and take care of his household needs.” (Id. at 3.) 13 These objections do not undermine the magistrate judge’s reasoning. First, plaintiff 14 provides no authority for the proposition that economic stimulus payments cannot be considered 15 in determining whether IFP applicants are able to pay court filing fees. Although plaintiff 16 suggests that certain automatic withdrawals from his account have not applied to these payments, 17 (see id. at 5-6), this is a separate matter from whether he is financially capable of paying the filing 18 fee for this case. Plaintiff also attaches to his objections Judicial Council of California Form EJ- 19 155, which lists various provisions of the California Code of Civil Procedure that exempt certain 20 kinds of assets from levy on a judgment. (See Doc. No. 13, Exh. D.) But, the filing fee due in 21 this case is not a judgment that the court is levying, so the provisions listed on Form EJ-155 are 22 not applicable. 23 Second, plaintiff does not explain why he requires these payments to “take care of his . . . 24 needs.” (Id. at 3.) He is presently incarcerated and so his “basic needs are provided by the State,” 25 Clifton v. Curry, No. 2:20-cv-02149-JDP, 2020 WL 6526126, at *1 (E.D. Cal. 2020). As the 26 magistrate judge correctly explained, although a party need not be completely destitute to proceed 27 IFP, Adkins, 335 U.S. at 339-40, “‘the same even-handed care must be employed to assure that 1 | suitor who is financially able . . . to pull his own oar,’” Anderson v. California, No. 10 CV 2216 2 | MMA AJB, 2010 WL 4316996, at *1 (S.D. Cal. Oct. 27, 2010) (quoting Temple v. Ellerthorpe, 3 | 586 F. Supp. 848, 850 (D.R.I. 1984)). 4 Although the balance in plaintiffs trust fund account is modest, plaintiff is financially 5 | able to pay the filing fee. 6 Accordingly, 7 1. The findings and recommendations issued on June 3, 2021 (Doc. No. 12) are adopted 8 in full; 9 2. Plaintiffs motion to proceed in forma pauperis (Doc. No. 10) is denied; 10 3. Within 30 days of the date of service of this order, plaintiff shall pay the $402 filing 11 fee in full; and, 12 4. Failure to pay the filing fee within the time provided will result in dismissal of this 13 action. 14 | IT IS SO ORDERED. a - Dated: _ July 20, 2021 Y al, Al 4 a 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28