Perrotte v. Johnson et al

Filing 205

ORDER ADOPTING 200 Findings and Recommendations; ORDER DENYING Defendant Johnson's 180 Motion for Summary Judgment; The matter is referred back to the Magistrate Judge for further proceedings, signed by Chief Judge Lawrence J. O'Neill on 12/6/2019. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEFFREY P. PERROTTE,

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Plaintiff,
v.
STACEY JOHNSON,
Defendant.

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Case No. 1:15-cv-00026-LJO-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, AND DENYING
DEFENDANT JOHNSON’S MOTION FOR
SUMMARY JUDGMENT
[ECF Nos. 180, 200]

Plaintiff Jeffrey P. Perrotte is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On October 3, 2019, the Magistrate Judge issued Findings and Recommendations

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recommending that Defendant Johnson’s motion for summary judgment be denied. (ECF No. 200.)

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The Findings and Recommendations were served on the parties and contained notice that objections

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were to be filed within thirty days. (Id.) On October 31, 2019, Plaintiff filed objections. (ECF No.

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204.) On November 1, 2019, Defendant Johnson filed objections. (ECF No. 203.)

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After reviewing the parties’ objections, the Court finds no basis to alter the Magistrate Judge

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Findings and Recommendations. In Plaintiff’s objections, Plaintiff again seeks to reinstate his

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retaliation claim based on the alleged forged escape letter which was previously dismissed for failure

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to exhaust the administrative remedies. Plaintiff’s argument is without merit for the same reasons
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stated in the Court’s November 27, 2018, order, namely Plaintiff has not demonstrated that any other

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retaliation claims have been exhausted beyond the claim against Defendant Johnson for placement of a

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false CDCR Form 128-B in his central file and placement in administrative housing thereafter. (ECF

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No. 169.)

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Defendant objects to the Magistrate Judge’s recommendation to deny dismissal of the action

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for misrepresentation of his financial resources on the application to proceed in forma pauperis in this

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action. However, the undersigned agrees with the reasons set forth in the October 3, 2019, Findings

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and Recommendations. On the form application to proceed in forma pauperis by a prisoner, Plaintiff

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indicated that he received $27.00 a month for his prison job, he occasionally received gifts from

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family and friends but never knew how much or when, he borrowed $2,300.00 from friends for his

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parole board attorney, and as of December 20, 2014, he had approximately $502.00 in his prison trust

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account. (ECF No. 2.) Plaintiff was clearly incarcerated at the time of filing the instant action and

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application to proceed in forma pauperis. Based on a review of the application, the undersigned finds

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that there is insufficient evidence that Plaintiff had sufficient funds to pay the filing fee for this action

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such that the allegations of poverty is untrue in this case. While Defendant contends that Plaintiff

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knowingly omitted community property money and assets, any subsequent assets (after he was

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released from prison on parole) does not demonstrate that Plaintiff was not able to pay the fees as of

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the date he filed while still in prison. Further, in forma pauperis status does not waive the civil action

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filing fee for incarcerated plaintiffs; it instead allows an incarcerated plaintiff to make payments on the

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filing fee until it is paid in full. See 28 U.S.C. § 1915(b)(2) (incarcerated plaintiff is obligated to make

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monthly payments in the amount of twenty percent of the proceeding month’s income credit to

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plaintiff’s prison trust account until the filing fee is paid in full); see also ECF No. 5. In addition,

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dismissing this case on such technicality would fly in the face of the general policy in favor of

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resolution of cases on the merits.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de

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novo review of this case. Having carefully reviewed the entire file, including the parties’ objections,

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the Court finds the Findings and Recommendations to be supported by the record and by proper

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analysis.
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Based on the foregoing, it is HEREBY ORDERED that:

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The Findings and Recommendations issued on October 3, 2019, are adopted in full;

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2.

Defendant Johnson’s motion for summary judgment filed on May 28, 2019, is denied;
and

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3.

The matter is referred back to the Magistrate Judge for further proceedings.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

December 6, 2019

UNITED STATES CHIEF DISTRICT JUDGE

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