Briggs v. Fenstermaker ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 JOHNNY LEE BRIGGS, Case No. 1:23-cv-00146-SAB 10 Plaintiff, ORDER DIRECTING CLERK OF COURT 11 TO RANDOMLY ASSIGN A DISTRICT v. JUDGE TO THIS ACTION 12 DAVID FENSTERMAKER, et al., FINDINGS AND RECOMMENDATIONS 13 RECOMMENDING PLAINTIFF’S MOTION Defendants. TO PROCEED IN FORMA PAUPERIS BE 14 DENIED 15 (ECF No. 2) 16 DEADLINE: FOURTEEN DAYS 17 18 Plaintiff Johnny Lee Briggs (“Plaintiff”) is proceeding pro se in this civil rights action 19 filed pursuant to 42 U.S.C. § 1983. Plaintiff also submitted an application to proceed in forma 20 pauperis in this action. (ECF No. 2.) On February 1, 2023, the Court received Plaintiff’s 21 prisoner trust account statement from Wasco State Prison (WSP). (ECF No. 6.) For the reasons 22 discussed herein, the Court shall recommend Plaintiff’s application to proceed IFP be denied. 23 /// 24 /// 25 /// 26 /// 27 /// /// 1 I. 2 DISCUSSION 3 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment of 4 fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the 5 plaintiff's “is unable to pay such fees or give security therefor.” A prisoner seeking to bring a 6 civil action must, in addition to filing an affidavit, “submit a certified copy of the trust fund 7 account statement ... for the 6-month period immediately preceding the filing of the complaint ... 8 obtained from the appropriate official of each prison at which the prisoner is or was confined.” 9 28 U.S.C. § 1915(a)(2). 10 Plaintiff has filed an application declaring that, due to his poverty, he is unable to pre-pay 11 the full amount of fees and costs for these proceedings or give security therefor, and that he 12 believes that he is entitled to the relief sought in his complaint. On February 1, 2023, however, 13 the Court received Plaintiff’s prison trust account statement from WSP. (ECF No. 6.) The 14 statement provides that as of February 1, 2023, Plaintiff currently has $6,587.30 to his credit. 15 Thus, the available balance in Plaintiff’s account reflects that he can pay the $402.00 filing fee 16 for this action. 17 Based on the foregoing, the information that Plaintiff has provided to the Court reflects 18 that he is financially able to pre-pay the entire filing fee to commence this action. Although the 19 Ninth Circuit Court of Appeals has held that “the filing fee ... should not take the prisoner’s last 20 dollar,” Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995), in these circumstances, it appears 21 Plaintiff has sufficient funds to pre-pay the $402.00 filing fee with money left over. Should 22 Plaintiff have additional information to provide the Court, or should his available balance change 23 by the time he receives this order, he may notify the Court. However, Plaintiff is advised that the 24 Court has the authority to consider any reasons and circumstances for any change in Plaintiff’s 25 available assets and funds. See Collier v. Tatum, 722 F.2d 653, 656 (11th Cir. 1983) (district 26 court may consider an unexplained decrease in an inmate’s trust account, or whether an inmate’s 27 account has been depleted intentionally to avoid court costs). Therefore, Plaintiff’s motion to 1 | proceed in forma pauperis must be denied. If Plaintiff wishes to proceed with this action, he 2 | must pre-pay the $402.00 filing fee in full. 3 I. 4 ORDER AND RECOMMENDATIONS 5 Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court shall 6 | randomly assign a District Judge to this action. 7 Further, it is HEREBY RECOMMENDED that: 8 1. Plaintiff Johnny Lee Briggs’s motion to proceed in forma pauperis (ECF No. 2) 9 be denied; and 10 2. Plaintiff be directed to pay the $402.00 filing fee for this action. 11 These Findings and Recommendations will be submitted to the United States District 12 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen 13 | (14) days after being served with these Findings and Recommendations, Plaintiff may file 14 | written objections with the Court. The document should be captioned “Objections to Magistrate 15 | Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 16 | within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 17 | 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 18 | 1991)). 19 IT IS SO ORDERED. OF. ee 21 | Dated: _February 1, 2023 _ ef UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28