(PC) Clemente v. Winkler ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCELINO CLEMENTE, Case No. 2:23-cv-00062-JDP (PC) 12 Plaintiff, ORDER THAT PLAINTIFF SHOW CAUSE WHY HIS APPLICATION TO PROCEED 13 v. IN FORMA PAUPERIS SHOULD NOT BE DENIED AND HE BE DIRECTED TO PAY 14 WINKLER, et al., THE ENTIRE FILING FEE 15 Defendants. ECF No. 2 16 17 18 19 20 21 Plaintiff, a state prisoner, brings this § 1983 action and, concurrently, has applied to 22 proceed in forma pauperis, ECF No. 2. I have reviewed his prison trust fund account statement, 23 ECF No. 5, and it appears that he has sufficient funds to cover the filing fee. His account 24 statement indicates that he has an available balance of $9,825, an amount that is more than 25 sufficient to cover the $402 filing fee. And, given that plaintiff is a prisoner, his necessities of 26 life, including food and housing, are provided by the state. Before recommending that plaintiff’s 27 application be denied, I will give him an opportunity to respond to this order and to explain why 28 he cannot pay the filing fee in this case while still retaining the ability to afford his necessities. 1 | See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (“An affidavit in support of an 2 | IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still 3 | afford the necessities of life.”). 4 Accordingly, it is ORDERED that within twenty-one days of this order’s entry plaintiff 5 || may respond to this order and explain why he should still be allowed to proceed in forma 6 | pauperis. Ifhe fails to do so, I will recommend that plaintiff's application be denied and he be 7 | directed to pay the full filing fee. 8 9 IT IS SO ORDERED. 10 ( 1 Ow — Dated: _ January 19, 2023 q-—— 11 JEREMY D. PETERSON 0 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28