(PC) Gibbs v. People of the Court

Filing 13

FINDINGS and RECOMMENDATION that Plaintiff's 10 Motion for Leave to Proceed In Forma Pauperis be Denied signed by Magistrate Judge Barbara A. McAuliffe on 7/19/2021. Referred to Judge Unassigned DJ. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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Case 1:21-cv-01005-NONE-BAM Document 13 Filed 07/19/21 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH C. GIBBS, 12 13 14 15 Plaintiff, v. PEOPLE OF THE COURT, et al., Defendants. 16 21 FINDINGS AND RECOMMENDATION THAT PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED FOURTEEN (14) DAY DEADLINE 18 20 ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION (ECF No. 10) 17 19 Case No. 1:21-cv-01005-BAM (PC) Plaintiff Keith C. Gibbs (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on June 15, 2021, together with a motion requesting leave to 22 proceed in forma pauperis pursuant to 28 U.S.C. § 1915, in the Sacramento Division of the 23 Eastern District of California. (ECF Nos. 1, 2.) Plaintiff filed a prisoner trust fund account 24 statement on June 16, 2021. (ECF No. 5.) The action was transferred to the Fresno Division on 25 June 25, 2021. (ECF No. 6.) 26 On June 28, 2021, the Court issued an order denying Plaintiff’s application to proceed in 27 forma pauperis, without prejudice, to allow Plaintiff an opportunity to clarify his financial 28 condition and adequately demonstrate financial hardship. (ECF No. 8.) The Court noted that 1 Case 1:21-cv-01005-NONE-BAM Document 13 Filed 07/19/21 Page 2 of 3 1 although Plaintiff’s certified trust account indicated a current available balance of $0.10, (ECF 2 No. 5), Plaintiff reported cash or checking or savings accounts in the amount of $50,000,000.00. 3 (ECF No. 2, pp. 3, 4.) Plaintiff was directed to explain whether he currently has access to 4 $50,000,000.00, and if he does, why he is not using those funds to pay the filing fee for this 5 action. (ECF No. 8.) 6 On July 16, 2021, Plaintiff filed a renewed application to proceed in forma pauperis. 7 (ECF No. 10.) In this application, Plaintiff again represented that he has cash (including the 8 balance of checking or savings accounts) in the total amount of $50,000.000. (ECF No. 10, p. 2.) 9 Plaintiff also represented that he has $300.00 in his prison trust account, had an average monthly 10 balance of $300.00 during the past six months, and received average monthly deposits of $300.00 11 to his trust account.1 (Id.) Despite the Court’s instructions, Plaintiff has failed to explain whether 12 he currently has access to the $50,000,000.00 he claims to possess, and why he has not used those 13 funds to pay the filing fee for this action. 14 Examination of Plaintiff’s certified trust account statement, (ECF No. 5), compared 15 against Plaintiff’s application to proceed in forma pauperis, (ECF No. 10), provides inconclusive 16 evidence of Plaintiff’s financial condition. Nevertheless, Plaintiff has continued to represent that 17 he possesses $50,000,000 in cash or in checking or savings accounts and receives average 18 monthly deposits to his trust account of $300.00. (ECF No. 10.) Without further clarifying 19 information from Plaintiff, the Court must find that Plaintiff possesses more than sufficient 20 financial means to pay the filing fee for this action. 21 22 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a District Judge to this action. 23 Further, it is HEREBY RECOMMENDED that: 24 1. The motion to proceed in forma pauperis (ECF No. 10) be DENIED; and 25 /// 26 27 28 1 Although the certification portion of the application is intended to be completed by the institution of incarceration, it appears that Plaintiff has completed and signed this portion, and the Court therefore relies on these representations. 2 Case 1:21-cv-01005-NONE-BAM Document 13 Filed 07/19/21 Page 3 of 3 1 2. Plaintiff be ORDERED to pay the $402.00 initial filing fee in full to proceed with this 2 action. 3 These Findings and Recommendations will be submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 5 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 6 file written objections with the court. The document should be captioned “Objections to 7 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 8 objections within the specified time may result in the waiver of the “right to challenge the 9 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 10 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 13 14 IT IS SO ORDERED. Dated: /s/ Barbara July 19, 2021 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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