(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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAFAEL SALAS,

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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)

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OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS

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ORDER DIRECTING CLERK TO ASSIGN
DISTRICT JUDGE

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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).

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The Court will recommend that Plaintiff’s application be denied. As Plaintiff had

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$3,347.07 in his prison trust account at the time he filed this action (ECF No. 8, p. 1), it appears

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that Plaintiff can afford to pay the filing fee for this action.

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Additionally, given that Plaintiff’s account balance has been over $3,300 for the entirety

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of the last six months (id.), it appears that Plaintiff would be required to pay the filing fee in

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full immediately even if the Court granted Plaintiff’s application. 28 U.S.C. § 1915(b)(1)
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(“Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma

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pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall

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assess and, when funds exist, collect, as a partial payment of any court fees required by law, an

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initial partial filing fee of 20 percent of the greater of-- (A) the average monthly deposits to the

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prisoner’s account; or (B) the average monthly balance in the prisoner’s account for the 6-

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month period immediately preceding the filing of the complaint or notice of appeal.”).

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Therefore, the Court will recommend that Plaintiff’s application to proceed in forma

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pauperis will be denied and that Plaintiff be required to pay the filing fee of $402.00 for this

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action in full.

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Based on the foregoing, the Court HEREBY RECOMMENDS that:

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1.

Plaintiff’s application to proceed in forma pauperis be DENIED; and

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2.

Plaintiff be directed to pay the $402.00 filing fee in full if he wants to proceed

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with this action.
These findings and recommendations will be submitted to the United States district

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judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within

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twenty-one (21) days after being served with these findings and recommendations, Plaintiff

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may file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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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

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