Robertson v. State of California ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN ROBERTSON, Case No. 1:23-cv-00975-ADA-SAB 12 Plaintiff, ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND 13 v. REQUIRING PLAINTIFF TO PAY FILING FEE 14 STATE OF CALIFORNIA, et al., (ECF No. 14) 15 Defendants. DEADLINE: OCTOBER 5, 2023 16 17 Plaintiff Jonathan Robertson, filed the complaint in this action on June 23, 2023. (ECF 18 No. 1.) At filing, Plaintiff was a state prisoner proceeding with counsel. Plaintiff did not pay the 19 filing fee in this action and instead filed an application to proceed in forma pauperis pursuant to 20 28 U.S.C. § 1915. (ECF No. 3.) On July 5, 2023, the Court received Plaintiff’s prisoner trust 21 account statement from the Central California Women’s Facility (CCWF). (ECF No. 6.) The 22 statement provided that as of July 3, 2023, Plaintiff had $12,619.13 in the trust account, and 23 finding the available balance in Plaintiff’s account reflected that Plaintiff could pay the $402.00 24 filing fee for this action, on July 6, 2023, the Court issued findings and recommendations that the 25 application to proceed in forma pauperis be denied. (ECF No. 8.) The Court’s recommendation 26 specifically stated: 27 Should Plaintiff have additional information to provide the Court, or should Plaintiff’s available balance change by the time he 1 advised that the Court has the authority to consider any reasons and circumstances for any change in Plaintiff’s available assets and 2 funds. See Collier v. Tatum, 722 F.2d 653, 656 (11th Cir. 1983) (district court may consider an unexplained decrease in an inmate’s 3 trust account, or whether an inmate’s account has been depleted intentionally to avoid court costs). 4 5 (ECF No 8 at 2-3.) 6 Plaintiff, still represented by counsel, did not file objections to the findings and 7 recommendations within the time period to do so. (ECF No. 13.) On September 5, 2023, the 8 District Judge adopted the findings and recommendations and ordered Plaintiff to pay the filing 9 fee within thirty (30) days of service of the order. (ECF No. 13.) The District Judge’s order 10 adopting did not discuss an option to file a renewed application to proceed in forma pauperis. 11 (ECF No. 13.) The filing fee is thus due October 5, 2023. 12 On September 14, 2023, Plaintiff, still represented by counsel, filed a motion to proceed 13 in forma pauperis. (ECF No. 14.) Now, Plaintiff’s application indicates they are no longer 14 incarcerated, however, also writes the initials “CCWF,” perhaps noting the previous place of 15 incarceration. Plaintiff claims no form of income, zero money in cash or checking/savings 16 accounts, and no property or assets. Further, the Court notes the application was signed by 17 Plaintiff on September 1, 2023, before the date the District Judge adopted the findings and 18 recommendations. Finally, the form used still has the signature affirming authorization to obtain 19 a prisoner trust statement. 20 In the Court’s view, Plaintiff was ordered to pay the filing fee in this action by October 5, 21 2023, and has not. (ECF No. 13.) The District Judge’s order expressly stated: “Plaintiff is 22 ordered to submit the appropriate filing fee in full no later than thirty (30) days from the date of 23 service of this order; and [] Plaintiff is warned that failure to comply with this order will result in 24 dismissal of this action.” (ECF No. 13 at 2.) Given the fact Plaintiff is represented by counsel, 25 the previous recommendation based on the trust statement, the District Judge’s order adopting 26 issued before the filed application (but before the application was signed) that required Plaintiff 27 to pay the filing fee, and the insufficient information in the current application in relation to the previous application, the Court shall deny the instant application. Plaintiff and Plaintiff’s 1 | counsel are warned that this action may be summarily dismissed if the filing fee is not paid by 2 | October 5, 2023, as ordered by the District Judge in this action. 3 Based upon the foregoing, it is HEREBY ORDERED that: 4 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 14) is DENIED; 5 and 6 2. On or before October 5, 2023, Plaintiff shall pay the filing fee for this action, or 7 this action is subject to dismissal for failure to pay the filing fee in this action, 8 failure to comply with the Court’s order, and failure to prosecute. 9 10 IT IS SO ORDERED. DAM Le 11 | Dated: _ September 15, 2023 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28