Shehee v. Perez et al

Filing 24

ORDER DENYING 21 Motion to Proceed IFP; ORDER ADOPTING 22 FINDINGS AND RECOMMENDATIONS; this matter is referred back to assigned Magistrate for proceedings consistent with this order; Plaintiff shall pay $400.00 Filing Fee in Full to proceed with this action, signed by District Judge Anthony W. Ishii on 06/27/17. (45 Day Deadline)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY ELL SHEHEE,

Case No. 1:16-cv-01346-AWI-BAM (PC)

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Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DENIAL OF PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS

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v.
PEREZ, et al.,

(ECF No. 22)

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Defendants.
FORTY-FIVE (45) DAY DEADLINE

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Plaintiff Gregory Ell Shehee (“Plaintiff”) is a county jail inmate proceeding pro se in this
civil rights action pursuant to 42 U.S.C. § 1983.

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I.

Background

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On February 6, 2017, the Court directed Plaintiff to submit a prisoner application to

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proceed in forma pauperis in this action. (ECF No. 11.) On March 3, 2017, Plaintiff filed an

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application to proceed in forma pauperis that failed to clearly describe the source of money he

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received in the form of a settlement check, and if he expected to receive additional amounts.

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(ECF No. 13.) The Court denied the motion without prejudice and directed Plaintiff to file a

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completed in forma pauperis application or to pay the filing fee within forty-five (45) days. (ECF

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No. 15.) On April 10, 2017, Plaintiff filed a renewed motion to proceed in forma pauperis and a

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declaration in support. Plaintiff indicated that he received a one-time payment of approximately

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$4,200.00 from a legal settlement, and appeared to state that he retained a balance of $4,000.00 in

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his jail account. Plaintiff did not include a certified copy of his trust account statement, and the

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certification portion of the in forma pauperis application was blank. (ECF Nos. 18, 19.) The Court

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issued another order directing Plaintiff to file a completed application or to pay the filing fee

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within forty-five (45) days. (ECF No. 20.)
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On May 5, 2017, Plaintiff filed a renewed application to proceed in forma pauperis,

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including is a certified copy of Plaintiff’s prison trust account statement. The trust account

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statement indicated that during the prior six months Plaintiff held an average monthly balance of

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$3,616.66 in his account, and his current balance was $3,386.10. (ECF No. 21.)

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On May 11, 2017, the assigned magistrate judge issued findings and recommendations

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recommending that Plaintiff’s motion to proceed in forma pauperis be denied. (ECF No. 22.)

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Those findings and recommendations were served on Plaintiff and contained notice that any

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objections thereto were to be filed within fourteen (14) days after service. (Id.) Plaintiff timely

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filed objections on May 24, 2017. (ECF No. 23.)

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II.

Objections

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In his objections, Plaintiff contends that he should be allowed to proceed in forma

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pauperis because he is a civil detainee, not a prisoner, and the money in his trust account came

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from a one-time settlement payment but he has no other income or support. In the alternative,

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Plaintiff requests a reduction of the filing fee to $200.00, or that the Court order the Sheriff’s

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Inmate Trust Accounting Department to direct payment of the filing fee to the Court.

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Plaintiff’s objections are unavailing. Examination of Plaintiff’s trust prison trust account

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statement reveals that he is more than able to afford the costs of this action, regardless of the

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source or infrequency of the funds.

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With respect to Plaintiff’s offer to pay only $200.00 towards the filing fee, Plaintiff is

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reminded that the Court will accept multiple checks for payment if he is unable to withdraw the

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full amount requested in a single check. Nevertheless, Plaintiff will be responsible for payment of

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the entire $400.00 filing fee.

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Plaintiff’s remaining argument that he was without funds to pay the costs of this action at

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the time of filing is similarly unpersuasive. Had Plaintiff’s motion to proceed in forma pauperis

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been granted initially, Plaintiff would still be required to pay the filing fee in installments

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pursuant to 28 U.S.C. § 1915. Once he received his settlement check, the funds would then have

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been applied to any remaining balance for this action.

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Plaintiff indicates that he has submitted multiple requests for payment of the filing fee to
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be sent to the Court, but has received no responses. Plaintiff has filed a grievance for retaliation

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with respect to his inmate trust account. At this time, the Court declines to order the Sheriff’s

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department to pay the filing fee. Plaintiff will be given forty-five (45) days from the date of

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service of this order to pay the $400.00 filing fee for this action. If Plaintiff continues to receive

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no responses to his requests to the Sheriff’s department, Plaintiff should file a separate motion

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seeking assistance from the Court. In addition, to the extent Plaintiff wishes to raise new claims

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against the Sherriff’s department, those claims are not properly before the Court in this action.

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III.

Conclusion and Order

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

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de novo review of this case. Having carefully reviewed the entire file, the Court finds the

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findings and recommendations to be supported by the record and by proper analysis.

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Accordingly,

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1. The findings and recommendations issued on May 11, 2017 (ECF No. 22), are

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adopted in full;

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2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 21) is denied;

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3. Within forty-five (45) days following the date of service of this order, Plaintiff shall

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pay the $400.00 filing fee in full to proceed with this action.
4. If Plaintiff fails to pay the filing fee within the specified time, this action will be
dismissed; and
5. The matter is referred back to the assigned magistrate for proceedings consistent with
this order.

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IT IS SO ORDERED.
Dated: June 27, 2017
SENIOR DISTRICT JUDGE

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