Lipsey v. State of California ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 FANCY MOORE LIPSEY, Case No. 1:23-cv-00976-SAB 10 Plaintiff, ORDER DIRECTING CLERK OF COURT 11 TO RANDOMLY ASSIGN A DISTRICT v. JUDGE TO THIS ACTION 12 STATE OF CALIFORNIA, et al., FINDINGS AND RECOMMENDATIONS 13 RECOMMENDING PLAINTIFF’S MOTION Defendants. TO PROCEED IN FORMA PAUPERIS BE 14 DENIED 15 (ECF No. 2) 16 DEADLINE: FOURTEEN DAYS 17 18 Plaintiff Fancy Moore Lipsey (“Plaintiff”) is a state prisoner proceeding with counsel in 19 this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff also submitted an application 20 to proceed in forma pauperis in this action. (ECF No. 2.) On July 5, 2023, the Court received 21 Plaintiff’s prisoner trust account statement from the Central California Women’s Facility 22 (CCWF). (ECF No. 6.) For the reasons discussed herein, the Court shall recommend Plaintiff’s 23 application to proceed in forma pauperis be denied. 24 /// 25 /// 26 /// 27 /// /// 1 I. 2 DISCUSSION 3 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment of 4 fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the 5 plaintiff's “is unable to pay such fees or give security therefor.” A prisoner seeking to bring a 6 civil action must, in addition to filing an affidavit, “submit a certified copy of the trust fund 7 account statement ... for the 6-month period immediately preceding the filing of the complaint ... 8 obtained from the appropriate official of each prison at which the prisoner is or was confined.” 9 28 U.S.C. § 1915(a)(2). 10 Plaintiff has filed an application declaring that, due to poverty, Plaintiff is unable to pre- 11 pay the full amount of fees and costs for these proceedings or give security therefor, and that 12 contends Plaintiff is entitled to the relief sought in the complaint. (ECF No. 2.) On July 5, 2023, 13 however, the Court received Plaintiff’s prison trust account statement from CCWF. (ECF No. 14 6.) The statement provides that as of July 3, 2023, Plaintiff currently has $20,083.79 in the trust 15 account. Thus, the available balance in Plaintiff’s account reflects that Plaintiff can pay the 16 $402.00 filing fee for this action. 17 Based on the foregoing, the information that Plaintiff has provided to the Court reflects 18 that Plaintiff is financially able to pre-pay the entire filing fee to commence this action. 19 Although the Ninth Circuit Court of Appeals has held that “the filing fee ... should not take the 20 prisoner’s last dollar,” Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995), in these 21 circumstances, it appears Plaintiff has sufficient funds to pre-pay the $402.00 filing fee with 22 money left over. Should Plaintiff have additional information to provide the Court, or should 23 Plaintiff’s available balance change by the time she receives this order, Plaintiff may notify the 24 Court. However, Plaintiff is advised that the Court has the authority to consider any reasons and 25 circumstances for any change in Plaintiff’s available assets and funds. See Collier v. Tatum, 722 26 F.2d 653, 656 (11th Cir. 1983) (district court may consider an unexplained decrease in an 27 inmate’s trust account, or whether an inmate’s account has been depleted intentionally to avoid 1 | court costs). Therefore, Plaintiff’s motion to proceed in forma pauperis must be denied. If 2 | Plaintiff wishes to proceed with this action, Plaintiff must pre-pay the $402.00 filing fee in full. 3 I. 4 ORDER AND RECOMMENDATIONS 5 Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court shall 6 | randomly assign a District Judge to this action. 7 Further, it is HEREBY RECOMMENDED that: 8 1. Plaintiff Fancy Moore Lipsey’s motion to proceed in forma pauperis (ECF No. 2) 9 be denied; and 10 2. Plaintiff be directed to pay the $402.00 filing fee for this action. 11 These Findings and Recommendations will be submitted to the United States District 12 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen 13 | (14) days after being served with these Findings and Recommendations, Plaintiff may file 14 | written objections with the Court. The document should be captioned “Objections to Magistrate 15 | Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 16 | within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 17 | 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 18 | 1991)). 19 IT IS SO ORDERED. OF. ee 21 | Dated: _ July 5, 2023 _ ef UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28