(PC)Williams v. Soto ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MELVIN WILLIAMS, Case No. 1:23-cv-00547-EPG (PC) 10 Plaintiff, ORDER DIRECTING CLERK OF COURT TO 11 ASSIGN A DISTRICT JUDGE v. 12 FINDINGS AND RECOMMENDATIONS, SOTO, et al., RECOMMENDING THAT PLAINTIFF’S 13 Defendants. THIRD APPLICATION TO PROCEED IN 14 FORMA PAUPERIS BE DENIED 15 (ECF No. 11) 16 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 17 18 Plaintiff Melvin Williams is a state prisoner proceeding pro se in this civil rights action 19 filed pursuant to 42 U.S.C. § 1983. Now before the Court is Plaintiff’s third application to 20 proceed in forma pauperis (IFP). (ECF No. 11). As explained below, the Court will recommend that Plaintiff’s third IFP application be denied and that Plaintiff be ordered to pay the filing fee to 21 proceed with this action. 22 The Court denied Plaintiff’s first IFP application without prejudice to filing another 23 application fully explaining his financial circumstances because Plaintiff incorrectly stated that he 24 had received no money from other sources nor had any assets, yet his Trust Account Statement 25 showed that he had approximately $3,700 deposited in his account and had an ending balance of 26 $142.82. (ECF Nos. 2, 5). 27 Plaintiff filed a second IFP application, stating that he received $285 each month, and 28 1 after restitution, was left with only $125 for expenses, such as food. (ECF No. 7). The Court 2 denied the second application without prejudice to filing another application fully explaining his 3 financial circumstances because Plaintiff failed to explain a payment of $2225.56 and the Trust 4 Account Statement indicated that Plaintiff had not made any restitution payments for approximately six months. (ECF No. 10). 5 Plaintiff filed his third IFP application on May 31, 2023. (ECF No. 11). He states that the 6 payment of $2225.56 was donated to help pay off his restitution. He states that he currently has 7 approximately $304.27 in funds and has received various other deposits to buy commissary items. 8 “An affidavit in support of an IFP application is sufficient where it alleges that the affiant 9 cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 10 F.3d 1226, 1234 (9th Cir. 2015). By all indications, Plaintiff can afford to pay the filing fee. 11 While the $2225.56 deposit Plaintiff received last year appears to have gone to restitution as 12 Plaintiff claims, Plaintiff has received approximately $1200 in “JPAY” deposits since the 13 beginning of this year. (ECF No. 9, p. 1). None of the $1200 went to restitution as Plaintiff has 14 made no restitution payments since November 2022, and the Trust Account Statement lists his 15 restitution as “[f]ulfilled.” Rather, as Plaintiff indicates, it appears that the $1200 he received 16 went mostly to commissary sales.1 Plaintiff does not show, nor does the Court find, that his using 17 funds on commissary items excuses him from paying the filing fee. See Olivares v. Marshall, 59 18 F.3d 109, 112 (9th Cir. 1995) (concluding that district court did not err in imposing partial filing 19 fee where the plaintiff consistently spent his money on commissary items). 20 Lastly, the Court notes that since this lawsuit was filed on April 7, 2023, Plaintiff has 21 received $555, which alone is sufficient to have paid the $402 filing fee. And while he spent over 22 $200 of this amount on sales, he still had an account balance of $356.17 as of May 2, 2023. 23 Based on the above, IT IS ORDERED that the Clerk of Court is directed to assign a District Judge. 24 \\\ 25 \\\ 26 27 1 The Court notes that Plaintiff made a $10 donation from his account on May 2, 2023, and paid $.40 for 28 legal copy on April 24, 2023. (ECF No. 9, p. 1). 1 And IT IS RECOMMENDED that: 2 1. Plaintiff’s third application to proceed in forma pauperis (ECF No. 11) be 3 | DENIED; and 4 2. Plaintiff be directed to pay the $402.00 filing fee in full if he wants to proceed with 5 | this action. 6 These findings and recommendations will be submitted to the United States district judge 7 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 8 | (14) days after being served with these findings and recommendations, Plaintiff may file written 9 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 10 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 11 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 12 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 4 IT IS SO ORDERED. IS | Dated: _ June 7, 2023 [see hey — 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28