(PC) Hill v. Lynch ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CYMEYON V. HILL, No. 2:22-cv-1685 TLN KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JEFF LYNCH, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to the undersigned pursuant to 28 U.S.C. 19 § 636(b)(1)(B) and Local Rule 302. 20 On December 1, 2022, the undersigned recommended that this action be dismissed based 21 on plaintiff’s failure to respond to the November 1, 2022 order to show cause. On December 5, 22 2022, plaintiff filed a motion for reconsideration of the November 1, 2022 order to show cause 23 why plaintiff should not be required to pay the court’s filing fee. Such filing was dated 24 November 4, 2022. On December 12, 2022, plaintiff filed a motion for reconsideration and 25 objections to the findings and recommendations. Good cause appearing, plaintiff’s motions for 26 reconsideration are partially granted, and the findings and recommendations are vacated. 27 In his application to proceed in forma pauperis, completed under penalty of perjury, 28 plaintiff asserted that he has received no money over the last twelve months from various sources 1 | including gifts and other sources. (ECF No. 2 at 1.) Plaintiff alleged that he has no cash. (Id. at 2 || 2.) However, plaintiff's prison trust account statement, filed November 3, 2022, confirmed that 3 | as of August 26, 2022, plaintiff had $5,221.90. (ECF No. 8.) 4 Plaintiff's recent motions do not address whether or not plaintiff should be required to pay 5 || the court’s filing fee, but rather discuss, inter alia, the merits of his underlying claims. The court 6 || may authorize the commencement of an action “without prepayment of fees or security therefor” 7 || by an individual who submits an application evidencing an inability to pay such fees or give 8 | security therefor. 28 U.S.C. § 1915(a). Plaintiffs claim of inability to pay the filing fee in his 9 || application before the court is contradicted by his inmate trust account statement. Thus, it is 10 || recommended that the application to proceed in forma pauperis be denied and plaintiff be 11 || required to pay the $402.00 before this action can proceed. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff's motions for reconsideration (ECF Nos. 11 & 12) are partially granted; and 14 2. The findings and recommendations (ECF No. 10) are vacated. 15 Further, IT IS RECOMMENDED that: 16 1. Plaintiffs motion for leave to proceed in forma pauperis be denied; and 17 2. Plaintiff be ordered to pay the $402.00 filing fee within fourteen days from the date of 18 || any order adopting these findings and recommendations and be warned that failure to do so will 19 | result in the dismissal of this action. 20 These findings and recommendations are submitted to the United States District Judge 21 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(I). Within twenty-one days 22 || after being served with these findings and recommendations, plaintiff may file written objections 23 || with the court and serve a copy on all parties. Such a document should be captioned 24 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 25 || failure to file objections within the specified time may waive the right to appeal the District 26 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 27 Dated: December 16, 2022 Mhill1685.rec 28 Fel Arn □ KENDALL J.NE TINTITED STATES MA CTETE ATE TINncEe