(PC) Solomon v. Tapia ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KING SOLOMON, Case No. 1:22-cv-01604-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE 13 v. FINDINGS AND RECOMENDATIONS TO DENY PLAINTIFF’S MOTION TO 14 FNU TAPIA, FNU PRADA, PROCEED IN FORMA PAUPERIS (Doc. No. 2) 15 Defendants. FOURTEEN-DAY OBJECTION PERIOD 16 17 18 Plaintiff King Solomon, a state prisoner who is proceeding pro se, initiated this action by 19 filing a civil rights complaint under 42 U.S.C. § 1983 on December 15, 2022. (Doc. No. 1). 20 Plaintiff seeks leave to proceed in forma pauperis. (Doc. No. 2, “IFP”). The undersigned 21 recommends Plaintiff be denied IFP status and he be required to pay the full filing fee due to 22 having sufficient funds in his inmate account. 23 BACKGROUND 24 Plaintiff is currently confined in California State Prison, Corcoran. In his IFP application, 25 Plaintiff declares he is unable to pre-pay the full amount of fees and costs for these proceedings or 26 give security and believes that he is entitled to the relief sought in his complaint. (Doc. No. 2 at 27 1). However, Plaintiff also states that he has more than $6,000.00 in his account but has “no way 28 of giving the Court the money” unless an order directs payment. (Id. at 2). The Inmate Statement 1 Report attached to the application confirms Plaintiff has an available sum of $6,304.38 in his 2 inmate account. (Id. at 3). 3 APPLICABLE LAW 4 Title 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment 5 of fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the 6 plaintiff’s “is unable to pay such fees or give security therefor.” Under the PLRA, prisoners must 7 pay the full amount of the fee. Id. 1915(b)(1). Thus, when a prisoner brings a civil action, he 8 must, in addition to filing an affidavit, “submit a certified copy of the trust fund account statement 9 . . . for the 6-month period immediately preceding the filing of the complaint . . . obtained from 10 the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 11 1915(a)(2). 12 Proceeding IFP is “a matter of privilege and not right.” Franklin v. Murphy, 745 F.2d 13 1221, 1231 (9th Cir. 1984) (abrogated on different grounds). A determination of indigency rests 14 within the court’s discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 15 1991), reversed on other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the 16 reviewing court to exercise its sound discretion in determining whether the affiant has satisfied 17 the statute's requirement of indigency.”). Although an IFP applicant need not be “destitute” a 18 showing of indigence is required. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339– 19 40 (1948) (recognizing that an ability not to be able to pay for oneself and his dependents “the 20 necessities of life” is sufficient). Thus, a plaintiff must allege indigence “with some particularity, 21 definiteness and certainty” before IFP can be granted. United States v. McQuade, 647 F.2d 938, 22 940 (9th Cir. 1981). Prisoners, unlike non-prisoner litigants, are in state custody “and 23 accordingly have the ‘essentials of life’ provided by the government.” Taylor v. Delatoore, 281 24 F.3d 844, 849 (9th Cir. 2002). The courts are inclined to reject ifp applications where an 25 applicant can pay the filing fee with an acceptable sacrifice to other expenses. See, e.g. Casey v. 26 Haddad, No. 1:21-CV-00855-SKO-PC, 2021 WL 2954009, at *1 (E.D. Cal. June 17, 27 2021), report and recommendation adopted, No. 1:21-CV-00855-DAD-SKO-PC, 2021 WL 28 2948808 (E.D. Cal. July 14, 2021) (finding prior balance of $1000, despite being decreased to 1 $470 shortly before filing action sufficient to pay $402 filing fee); Riddell v. Frye, No. 1:21-CV- 2 01065-SAB-PC, 2021 WL 3411876, at *1 (E.D. Cal. July 9, 2021), report and recommendation 3 adopted, No. 1:21-CV-01065-DAD-SAB-PC, 2021 WL 3472209 (E.D. Cal. Aug. 6, 2021) 4 (finding available balance of $1297.21 sufficient to pay $402 filing fee and denying ifp); Allen v. 5 Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (despite plaintiff initially being permitted to 6 proceed ifp, ordering plaintiff to pay $120 filing fee in full out of $900 settlement proceeds). 7 ANALYSIS 8 Plaintiff does not incur expenses in prison for necessities such as sustenance, housing, and 9 medical care. Although the Ninth Circuit Court of Appeals has held that “the filing fee . . . should 10 not take the prisoner’s last dollar,” Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995), the 11 information provided by Plaintiff reflects that he has sufficient funds to pre-pay the $402.00 filing 12 fee in full to commence this action and still will have adequate funds left over for any incidental 13 personal or commissary expenses. Indeed, Plaintiff appears to concede that that he has sufficient 14 funds to pay the filing fee but requires a court order to have the funds deducted from his account 15 and sent to the Court. 16 Based on the foregoing, the undersigned recommends that Plaintiff's motion to proceed in 17 forma pauperis be denied. 18 Accordingly, it is ORDERED: 19 The Clerk shall randomly assign a district court judge to this case. 20 It is further RECOMMENDED: 21 1. Plaintiff’s motion for leave to proceed in forma pauperis (Doc. No. 2) be DENIED. 22 2. Plaintiff be required to pay the full $402.00 filing fee, absent which the Court will 23 dismiss this action without prejudice. 24 NOTICE TO PARTIES 25 These findings and recommendations will be submitted to the United States district judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 27 days after being served with these findings and recommendations, a party may file written 28 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 1 | Findings and Recommendations.” Parties are advised that failure to file objections within the 2 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 3 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 ° Dated: _ January 3, 2023 Mibu □ Zh. foareh Hack 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28