Rhey v. Ogbuehi et al

Filing 10

ORDER ADOPTING 5 FINDINGS AND RECOMMENDATIONS; ORDER DENYING Plaintiff's 2 Motion to Proceed IFP and ORDERING Plaintiff to Submit Filing Fee, in the amount of $400.00 or Notice of Voluntary Dismissal within Forty-Five Days,signed by District Judge Anthony W. Ishii on 07/21/17. (Case Management Deadline: 30-Day) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHOON RHEY,

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Plaintiff,
v.
INFEOMA OGBUEHI, et al.,

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Defendants.

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Case No.: 1:17-cv-00718-AWI-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DENYING PLAINTIFF’S
MOTION TO PROCEED IN FORMA PAUPERIS,
AND ORDERING PLAINTIFF TO SUBMIT
FILING FEE OR NOTICE OF VOLUNTARY
DISMISSAL WITHIN FORTY-FIVE DAYS
[ECF Nos. 2, 5, 7]

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Plaintiff Choon Rhey is a state prisoner proceeding pro se in this civil rights matter pursuant to

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42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C.

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§ 636(b)(1)(B) and Local Rule 302.

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On May 5, 2017, Plaintiff initiated this action by filing a complaint. (ECF No. 1.) Along with

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the complaint, Plaintiff filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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(ECF No. 2.)

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On May 25, 2017, the Magistrate Judge filed Findings and Recommendations recommending

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that Plaintiff’s application to proceed in forma pauperis be denied, and that Plaintiff be ordered to pay

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the filing fee for this action. Specifically, the Magistrate Judge found that Plaintiff had not submitted

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a trust account statement for the entire six-month period preceding the filing of Plaintiff’s complaint,

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as required. More importantly, the Magistrate Judge also found that Plaintiff then had an available sum
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of $1,135.55, and based on his application and supporting documentation, he is able to pay the filing

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fee for this action. (ECF No. 5.)
The Findings and Recommendations were served on Plaintiff and contained notice that

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objections were to be filed within thirty days. On June 19, 2017, Plaintiff timely filed objections.

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(ECF No. 7.)

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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 Plaintiff’s 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.
Plaintiff objects that his failure to provide a trust account statement showing six months of

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activity prior to filing his complaint was due to an inadvertent error by prison officials, and he has now

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supplemented his application with the necessary statement. (ECF No. 7, p. 11.) The Court accepts

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Plaintiff’s explanation, and finds the trust account statement he has now submitted to be sufficient.
Plaintiff further objects that he cannot work due to mobility impairment, but receives sporadic

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financial help from friends and family members. This includes $999 that was received from a friend

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on March 3, 2017, which was sent to help Plaintiff with court costs. Plaintiff further submits that due

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to certain restrictions, he makes periodic large canteen purchases to last for several months. Plaintiff

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explains that his most recent purchases totaling $252.80 noted by the Magistrate Judge as an apparent

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discretionary expenditure was for additional food to supplement his prison meals.
The Court finds no error in the Magistrate Judge’s finding that Plaintiff is financially able to

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prepay the entire filing fee to commence this action. Plaintiff has explained that despite having no

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income from work, he receives financial assistance from friends and family, including for the payment

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of court costs. A district judge is entitled to consider a plaintiff’s “economic choices about how to

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spend his money, as between his filing fee and comforts purchased in the prison commissary.”

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Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995). Under the circumstances present here, the

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Court finds it appropriate to order Plaintiff to prepay the $400 filing fee if he wishes to proceed in this

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action.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations, filed on May 25, 2017, are adopted in full;

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2.

Plaintiff’s motion for leave to proceed in forma pauperis in this action (ECF No. 3) is
DENIED;

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3.

within thirty (30) days of the date of service of this order; and

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Plaintiff is directed to pay the $400 filing fee in full, or a notice of voluntary dismissal,

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The failure of Plaintiff to timely pay the filing fee will result in the dismissal of this
case without further notice.

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IT IS SO ORDERED.

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Dated: July 21, 2017

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SENIOR DISTRICT JUDGE

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