Hall et al v. Nakahara et al

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Stanley A. Boone on 4/6/2017 recommending denying 2 MOTION to PROCEED IN FORMA PAUPERIS. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 5/1/2017. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JASON LAMAR HALL, Plaintiff, 12 13 14 15 Case No. 1:17-cv-00481-LJO-SAB FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES v. VERNON NAKAHARA, et al., Defendants. (ECF No. 2) OBJECTIONS DUE WITHIN TWENTYONE DAYS 16 17 18 Plaintiff Jason Lamar Hall is appearing pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983. Along with his complaint, Plaintiff filed an application to proceed without 20 prepayment of fees. In order to proceed in court without prepayment of the filing fee, Plaintiff 21 must submit an affidavit demonstrating that he “is unable to pay such fees or give security 22 therefor.” 28 U.S.C. § 1915(a)(1). A prisoner bringing an action is required to submit a certified 23 copy of his trust fund account statement for the prior 6 month period immediately preceding the 24 filing of the complaint. 28 U.S.C. § 1915(a)(2). A prisoner is required to pay the filing fee, and 25 granting the application to proceed without prepayment of fees just requires that monthly 26 withdrawals be made from the inmate’s trust account when the amount in the account exceeds 27 $10.00 until the fee is paid in full. 28 U.S.C. § 1915(b)(2). 28 With his application to proceed without prepayment of fees, Plaintiff included a copy of 1 1 his trust account statement. According to Plaintiff’s trust account statement, on February 21, 2 2017, Plaintiff had $5,927.90 in his account. Plaintiff’s balance since September 2016 has been 3 decreasing on average about $100.00 per month. Therefore, Plaintiff’s application to proceed in 4 forma pauperis demonstrates that Plaintiff is able to pay the $400.00 filing fee in this action as he 5 has over $5,500.00 in his inmate trust account. Based upon the foregoing, the Court finds that Plaintiff is not eligible to proceed in forma 6 7 pauperis under 28 U.S.C. § 1915. Accordingly, it is HEREBY RECOMMENDED that 8 Plaintiff’s application to proceed in forma pauperis be DENIED; and Plaintiff be ordered to pay 9 the $400.00 filing fee within thirty (30) days. This findings and recommendations is submitted to the district judge assigned to this 10 11 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty12 one (21) days of service of this recommendation, Plaintiff may file written objections to this 13 findings and recommendations with the Court. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will 15 review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 16 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may 17 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 18 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 IT IS SO ORDERED. 21 Dated: April 6, 2017 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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