(PC) Broadnax v. Fernandez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 COTTRELL L. BROADNAX, 1:22-cv-01223-GSA-PC 12 ORDER FOR CLERK TO RANDOMLY Plaintiff, ASSIGN A UNITED STATES DISTRICT 13 JUDGE TO THIS CASE vs. 14 AND FERNANDEZ, et al., 15 FINDINGS AND RECOMMENDATIONS, Defendants. RECOMMENDING THAT PLAINTIFF’S 16 MOTIONS TO PROCEED IN FORMA PAUPERIS BE DENIED 17 (ECF Nos. 6, 14.) 18 OBJECTIONS, IF ANY, DUE IN 14 DAYS 19 20 21 22 23 24 I. FINDINGS 25 Cottrell L. Broadnax (“Plaintiff”) is a state prisoner proceeding pro se with this civil 26 rights action pursuant to 42 U.S.C. § 1983. On July 28, 2022, this case was commenced in the 27 United States District Court for the Northern District of California. (ECF No. 1.) The case was 28 transferred to this Court on September 23, 2022. (ECF No. 9.) 1 On August 31, 2022 and October 24, 2022, Plaintiff filed motions to proceed in forma 2 pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 6, 14.) 3 In his October 24, 2022 motion to proceed in forma pauperis, Plaintiff reports that he 4 received $1,200.00 in stimulus funds on February 16, 2022. (ECF No. 14 at 1.) Plaintiff’s prison 5 trust account statement shows that on October 10, 2022, he had a balance of $945.66 in the 6 account.1 (ECF No. 16.) Under these facts, the court finds that Plaintiff can afford the $402.00 7 filing fee for this action. Therefore, Plaintiff’s motions to proceed in forma pauperis should be 8 denied, and Plaintiff should be required to pay the filing fee of $402.00 for this action in full. 9 II. RECOMMENDATIONS AND CONCLUSION 10 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign 11 a United States District Judge to this case; 12 and 13 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 14 1. Plaintiff’s motions to proceed in forma pauperis, filed on August 31, 2022 and 15 October 24, 2022, be DENIED; and 16 2. Plaintiff be required to pay the $402.00 filing fee for this action in full. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 19 (14) days after the date of service of these findings and recommendations, Plaintiff may file 20 written objections with the court. Such a document should be captioned “Objections to 21 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 22 23 1 The Court notes that some, if not all, of the funds in Plaintiff’s account may be from “stimulus checks.” (ECF No. 14 at 1.). However, Plaintiff has not cited to any law, and the Court is not 24 aware of any, preventing “stimulus checks” from being included when determining whether a plaintiff can afford to pay the filing fee. Additionally, other courts in this district have included the funds when 25 making the determination. See, e.g., Hammler v. Zydus Pharmacy, 2021 WL 3048380, at *1-2 (E.D. Cal. July 20, 2021) (considering the plaintiff’s “economic impact payments” when determining that the 26 plaintiff was “financially able to pay the filing fee”); Corral v. California Highway Patrol, 2021 WL 27 2268877, at *1 (E.D. Cal. June 3, 2021) (findings and recommendations pending before district judge) (including the plaintiff’s “pandemic stimulus payments” in determining that the “plaintiff has made an 28 inadequate showing of indigency”). 1 objections within the specified time may waive the right to appeal the District Court’s order. 2 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 IT IS SO ORDERED. 4 5 Dated: October 28, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28