(PC) Jaramillo v. Burnes ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUDIE ANTHONY JARAMILLO, Case No. 1:22-cv-00233-ADA-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR EXTENSION OF TIME 13 v. (ECF No. 15) 14 BURNES, et al., ORDER DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING 15 Defendants. FEE AND FAILURE TO OBEY COURT ORDER 16 (ECF No. 14) 17 18 Plaintiff Rudie Anthony Jaramillo (“Plaintiff”) is a state prisoner proceeding pro se in this 19 civil rights action pursuant to 42 U.S.C. § 1983. 20 On February 24, 2022, the assigned Magistrate Judge issued findings and 21 recommendations recommending that Plaintiff’s application to proceed in forma pauperis be 22 denied because he can afford the costs of this action. (ECF No. 8.) The Magistrate Judge also 23 recommended that Plaintiff be ordered to pay the required $402.00 filing fee in full to proceed 24 with this action. (Id. at 2.) Plaintiff filed objections on March 10, 2022, arguing that the money 25 in his trust account may not be considered for court fees. (ECF No. 11.) Finding that Plaintiff 26 had cited to no authorities supporting such an assertion, the Court adopted the findings and 27 recommendations in full and ordered Plaintiff to pay the filing fee in full within twenty-one (21) 28 days after service. (ECF No. 14.) 1 Plaintiff has not paid the filing fee, and the deadline for him to do so has expired. In lieu 2 of paying the filing fee, on October 7, 2022, Plaintiff filed a motion for extension of time. (ECF 3 No. 15.) Plaintiff seeks additional time to request papers from the Prison Trust Office and to 4 access the prison law library. Plaintiff states that he is currently in administrative segregation and 5 needs time to conduct research into the new laws that he contends support his right to obtain in 6 forma pauperis status. (Id.) On November 14, 2022, Plaintiff filed a motion for leave to file a 7 first amended complaint. (ECF No. 17.). Plaintiff filed another motion for leave to file a first 8 amended complaint on November 28, 2022. (ECF No. 18.) 9 The Court finds that Plaintiff had the opportunity to raise these same arguments, and did 10 so, in his objections to the Magistrate Judge’s findings and recommendations. Plaintiff does not 11 allege that he did not have sufficient access to the law library at the time those objections were 12 filed, and the arguments set forth in the objections were not sufficient to persuade the Court that 13 the balance in Plaintiff’s inmate trust account could not be collected for the purpose of court 14 filing fees. Plaintiff has not provided any reason that the Court should now permit additional time 15 for Plaintiff to conduct further research to support this argument. Plaintiff’s motion for extension 16 of time will be denied. 17 Plaintiff’s motions for leave to file a first amended complaint will also be denied. Both 18 motions include an updated trust account statement showing that he no longer possesses sufficient 19 funds to pay the filing fee. (ECF Nos. 17 at 4-6; 18 at 3). Plaintiff argues that he should therefore 20 be permitted to proceed in forma pauperis and that his first amended complaint should be 21 accepted. This argument is unavailing. Because Plaintiff had sufficient funds to pay the filing fee 22 when the action was initiated, it’s not relevant that he has since spent the funds. His in forma 23 pauperis status is determined as of the date the complaint was filed, and he cannot spend down 24 his assets later to claim indigency that did not exist at that time. The district court has discretion 25 to consider how a plaintiff prioritizes spending available funds – whether on court filing fees or 26 canteen purchases, for example. See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995). 27 Because Plaintiff has failed to obey the Court’s order and pay the appropriate filing fee, 28 and Plaintiff has presented no indication that he intends to pay the filing fee, this case cannot 1 | proceed. This matter will be dismissed. See Ferdik vy. Bonzelet, 963 F.2d 1258, 1260-61 (9th 2 | Cir. 1992). 3 Based on the foregoing, IT IS HEREBY ORDERED as follows: 4 1. Plaintiff's motion for extension of time, (ECF No. 15), is denied; 5 2. Plaintiffs motions for leave to file a first amended complaint, (ECF Nos. 17, 18), are 6 denied 7 3. This action is dismissed, without prejudice, for Plaintiff's failure to comply with the 8 Court’s order and his failure to pay the filing fee; and 9 4. The Clerk of the Court is directed to terminate all pending motions and deadlines and 10 close this case. 11 12 13 | □□ □□ SO ORDERED. 14 Dated: _ March 20, 2023 5 UNITED f£TATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28