(PC) Salas v. Allison et al

Filing 11

FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's 2 Application to Proceed In Forma Pauperis be Denied; ORDER Directing Clerk to Assign District Judge, signed by Magistrate Judge Erica P. Grosjean on 04/26/2021. Referred to Judge Unassigned DJ. Objections to F&R Due Within Twenty-One Days. (Maldonado, C)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RAFAEL SALAS, 11 12 13 14 Case Number 1:21-cv-00669-EPG (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERS BE DENIED v. K. ALLISON, et al., Defendants. (ECF No. 2) 15 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 16 17 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 18 19 20 21 22 Rafael Salas (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on April 16, 2021. (ECF No. 1). On that same day, Plaintiff filed an application to proceed in forma pauperis. (ECF No. 2). 23 The Court will recommend that Plaintiff’s application be denied. As Plaintiff had 24 $3,347.07 in his prison trust account at the time he filed this action (ECF No. 8, p. 1), it appears 25 that Plaintiff can afford to pay the filing fee for this action. 26 Additionally, given that Plaintiff’s account balance has been over $3,300 for the entirety 27 of the last six months (id.), it appears that Plaintiff would be required to pay the filing fee in 28 full immediately even if the Court granted Plaintiff’s application. 28 U.S.C. § 1915(b)(1) 1 1 (“Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma 2 pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall 3 assess and, when funds exist, collect, as a partial payment of any court fees required by law, an 4 initial partial filing fee of 20 percent of the greater of-- (A) the average monthly deposits to the 5 prisoner’s account; or (B) the average monthly balance in the prisoner’s account for the 6- 6 month period immediately preceding the filing of the complaint or notice of appeal.”). 7 Therefore, the Court will recommend that Plaintiff’s application to proceed in forma 8 pauperis will be denied and that Plaintiff be required to pay the filing fee of $402.00 for this 9 action in full. 10 Based on the foregoing, the Court HEREBY RECOMMENDS that: 11 1. Plaintiff’s application to proceed in forma pauperis be DENIED; and 12 2. Plaintiff be directed to pay the $402.00 filing fee in full if he wants to proceed 13 14 with this action. These findings and recommendations will be submitted to the United States district 15 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 16 twenty-one (21) days after being served with these findings and recommendations, Plaintiff 17 may file written objections with the Court. The document should be captioned “Objections to 18 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 19 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 20 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 21 (9th Cir. 1991)). 22 23 24 25 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district judge to this case. IT IS SO ORDERED. Dated: April 26, 2021 /s/ UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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