(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)

Case 1:21-cv-01005-NONE-BAM Document 13 Filed 07/19/21 Page 1 of 3
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEITH C. GIBBS,

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Plaintiff,
v.
PEOPLE OF THE COURT, et al.,
Defendants.

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FINDINGS AND RECOMMENDATION
THAT PLAINTIFF’S MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS BE
DENIED

FOURTEEN (14) DAY DEADLINE

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ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE TO
ACTION

(ECF No. 10)

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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

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proceed in forma pauperis pursuant to 28 U.S.C. § 1915, in the Sacramento Division of the

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Eastern District of California. (ECF Nos. 1, 2.) Plaintiff filed a prisoner trust fund account

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statement on June 16, 2021. (ECF No. 5.) The action was transferred to the Fresno Division on

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June 25, 2021. (ECF No. 6.)

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On June 28, 2021, the Court issued an order denying Plaintiff’s application to proceed in

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forma pauperis, without prejudice, to allow Plaintiff an opportunity to clarify his financial

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condition and adequately demonstrate financial hardship. (ECF No. 8.) The Court noted that
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Case 1:21-cv-01005-NONE-BAM Document 13 Filed 07/19/21 Page 2 of 3
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although Plaintiff’s certified trust account indicated a current available balance of $0.10, (ECF

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No. 5), Plaintiff reported cash or checking or savings accounts in the amount of $50,000,000.00.

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(ECF No. 2, pp. 3, 4.) Plaintiff was directed to explain whether he currently has access to

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$50,000,000.00, and if he does, why he is not using those funds to pay the filing fee for this

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action. (ECF No. 8.)

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On July 16, 2021, Plaintiff filed a renewed application to proceed in forma pauperis.

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(ECF No. 10.) In this application, Plaintiff again represented that he has cash (including the

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balance of checking or savings accounts) in the total amount of $50,000.000. (ECF No. 10, p. 2.)

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Plaintiff also represented that he has $300.00 in his prison trust account, had an average monthly

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balance of $300.00 during the past six months, and received average monthly deposits of $300.00

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to his trust account.1 (Id.) Despite the Court’s instructions, Plaintiff has failed to explain whether

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he currently has access to the $50,000,000.00 he claims to possess, and why he has not used those

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funds to pay the filing fee for this action.

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Examination of Plaintiff’s certified trust account statement, (ECF No. 5), compared

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against Plaintiff’s application to proceed in forma pauperis, (ECF No. 10), provides inconclusive

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evidence of Plaintiff’s financial condition. Nevertheless, Plaintiff has continued to represent that

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he possesses $50,000,000 in cash or in checking or savings accounts and receives average

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monthly deposits to his trust account of $300.00. (ECF No. 10.) Without further clarifying

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information from Plaintiff, the Court must find that Plaintiff possesses more than sufficient

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financial means to pay the filing fee for this action.

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Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a
District Judge to this action.

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Further, it is HEREBY RECOMMENDED that:

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1. The motion to proceed in forma pauperis (ECF No. 10) be DENIED; and

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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.
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Case 1:21-cv-01005-NONE-BAM Document 13 Filed 07/19/21 Page 3 of 3
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2. Plaintiff be ORDERED to pay the $402.00 initial filing fee in full to proceed with this

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action.

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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)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may

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

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

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 19, 2021

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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