(PC) Thompson v. Allison ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SEKOU K. THOMPSON, Case No. 1:22-cv-00848 JLT HBK (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS, AND DIRECTING 14 KATHLEEN ALLISON, WILLIAM J. PAYMENT OF THE FILING FEE SULLIVAN, U. BANIGA, 15 (Docs. 2, 5) Defendants. 16 17 Sekou K. Thompson asserts he suffered violations of his Eighth Amendment rights while 18 incarcerated at the California Correctional Institution and seeks to state a claim pursuant to 42 19 U.S.C. § 1983. (Doc. 1.) Plaintiff seeks leave to proceed in in forma pauperis in this action. 20 (Doc. 2.) 21 The magistrate judge reviewed Plaintiff’s application, which included the Inmate 22 Statement Report. (Doc. 5.) The magistrate judge observed that the “certification completed by 23 an authorized prison official states Plaintiff: (1) currently has an available balance of $2,206.16 in 24 his inmate account; (2) had an average six-month balance of $2,635.06; and (3) had average 25 deposits of $110.83 over the last six-months.” (Id. 1-2, citing Doc. 2 at 3-5.) Based upon the 26 information provided, the magistrate judge found Plaintiff had sufficient funds in his inmate 27 account to pay the full filing fee, “and still have adequate funds left over for any incidental 28 personal or commissary expenses.” (Id. at 3.) Thus, the magistrate judge recommended 1 Plaintiff’s application to proceed IFP be denied. (Id. at 4.) 2 On July 28, 2022, Plaintiff filed timely objections to the Findings and Recommendations. 3 (Doc. 6.) In the objections, Plaintiff notes that the $2,206.00 available funds in his inmate trust 4 fund account were from Covid-19 stimulus money. (Id. at 1-2.) Plaintiff requests the Court not 5 adopt the Findings and Recommendations and instead allow him to proceed in forma pauperis. 6 (Id. at 1-4.) Plaintiff references the costs of comfort items he purchases in prison, explaining only 7 approved vendors may sell to prisoners and inflation resulted in increased prices. (Id. at 2-3.) 8 Plaintiff also submits that inflation may impact the amount of money sent from “outside 9 supporters [who] may be less able to provide help.” (Id. at 3.) 10 Importantly, the Court is entitled to consider the economic priority that an IFP applicant 11 placed on the use of his money, received from any source. See Olivares v. Marshall, 59 F.3d 12 109, 112 (9th Cir. 1995) (citing Alexander v. Carson Adult High School, 9 F.3d 1448, 1449 (9th 13 Cir. 1993). Thus, the Court may consider an inmate’s use of available funds for items other than 14 the payment of a filing fee. See, e.g., Olivares, 59 F.3d at 112 (finding the court “was entitled to 15 consider Oliveres’s own economic choices about how to spend his money, as between his filing 16 fee and comforts purchased in the prison commissary” in evaluating an IFP application); 17 Lumbert v. Illinois Department of Corrections, 827 F.2d 257, 260 (7th Cir. 1987) (“If the inmate 18 thinks a more worthwhile use of his funds would be to buy peanuts and candy . . . than to file a 19 civil rights suit, he has demonstrated an implied evaluation of the suit that the district court is 20 entitled to honor.”). Although Plaintiff may wish to prioritize his comfort item purchases from 21 prison vendors over his obligation to pay the filing fee, his preference to save available funds for 22 this purpose does not mandate permission to proceed in forma pauperis. Moreover, as the 23 magistrate judge determined, Plaintiff may pay the filing fee and still have funds for personal and 24 incidental purchases. 25 Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court conducted a de novo review of this case. 26 Having carefully reviewed the entire file—including Plaintiff’s objections—the Court concludes 27 the Findings and Recommendations to be supported by the record and by proper analysis. 28 Accordingly, the Court ORDERS: 1 1. The Findings and Recommendations issued on July 12, 2022 (Doc. 5) is 2 ADOPTED in full. 3 2. Plaintiff's motion to proceed in forma pauperis (Doc. 2) is denied. 4 3. Within 21 days following service of this order, Plaintiff shall pay the required 5 $402.00 filing fee in full to proceed with this action. 6 4. Plaintiff’s failure to pay the filing fee with the specified time will result in the 7 dismissal of this action without prejudice. 8 9 IT IS SO ORDERED. 10 Dated: _ August 17, 2022 Cerin | Tower TED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28