(PC) Saylor v. Allison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRYAN E. SAYLOR, 1:21-cv-01285-GSA-PC 12 Plaintiff, ORDER FOR CLERK OF COURT TO RANDOMLY ASSIGN A UNITED 13 vs. STATES DISTRICT JUDGE TO THIS CASE 14 ALLISON, et al., FINDINGS AND RECOMMENDATIONS, 15 Defendants. RECOMMENDING THAT PLAINTIFF’S MOTION TO PROCEED IN IN FORMA 16 PAUPERIS BE DENIED (ECF No. 2.) 17 OBJECTIONS, IF ANY, DUE IN 18 FOURTEEN (14) DAYS 19 20 21 22 I. FINDINGS 23 Bryan E. Saylor (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 24 action pursuant to 42 U.S.C. §1983. Plaintiff filed the Complaint commencing this action on 25 August 24, 2021. (ECF No. 1.) 26 On August 24, 2021, Plaintiff filed a motion to proceed in forma pauperis and a certified 27 copy of his prison trust account statement, pursuant to 28 U.S.C. § 1915. (ECF No. 2.) It appears, 28 from a review of Plaintiff’s trust account statement, that Plaintiff can afford the costs of this 1 action. Evidence shows that on August 20, 2021, the average monthly balance in Plaintiff’s 2 account during the past six months was $910.99, and the balance of Plaintiff’s account was 3 $1,371.20. (Id. at 2.) 4 The Court notes that some of the funds in Plaintiff’s account may be from “stimulus 5 checks.” (Id. at 3-4.). However, Plaintiff has not cited to any law, and the Court is not aware of 6 any, preventing “stimulus checks” from being included when determining whether a plaintiff can 7 afford to pay the filing fee. Additionally, other courts in this district have included the funds 8 when making the determination. See, e.g., Hammler v. Zydus Pharmacy, 2021 WL 3048380, at 9 *1-2 (E.D. Cal. July 20, 2021) (considering the plaintiff’s “economic impact payments” when 10 determining that the plaintiff was “financially able to pay the filing fee”); Corral v. California 11 Highway Patrol, 2021 WL 2268877, at *1 (E.D. Cal. June 3, 2021) (including the plaintiff’s 12 “pandemic stimulus payments” in determining that the “plaintiff has made an inadequate 13 showing of indigency”). 14 Therefore, Plaintiff’s motion to proceed in forma pauperis should be denied, and Plaintiff 15 should be required to pay the statutory filing fee of $402.00 for this action in full. 16 II. ORDER, RECOMMENDATIONS, AND CONCLUSION 17 A. Order 18 The Clerk of Court is HEREBY ORDERED to randomly assign a United States District 19 Judge to this case; and 20 B. Recommendations and Conclusion 21 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 22 1. Plaintiff’s motion to proceed in forma pauperis, filed on August 24, 2021, be 23 DENIED; and 24 2. Plaintiff be required to pay the $402.00 filing fee for this action in full within 25 thirty days. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 28 (14) days after the date of service of these findings and recommendations, Plaintiff may file 1 written objections with the court. Such a document should be captioned “Objections to 2 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 3 objections within the specified time may waive the right to appeal the District Court’s order. 4 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 IT IS SO ORDERED. 6 7 Dated: September 24, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28