(PC)Reynolds v. Arellano et al

Filing 3

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion to Proceed In Forma Pauperis, 2 , be DENIED and Plaintiff be ordered to pay the $402.00 Filing Fee in Full in Order to Proceed with this action;referred to Judge Ana de Alba; new case number is 1:22-cv-01482 ADA-SAB (PC), signed by Magistrate Judge Stanley A. Boone on 11/18/2022. (Objections to F&R due within 14-Day Deadline)(Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 TYRONE REYNOLDS, Case No. 1:22-cv-01482-SAB (PC) 10 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 11 v. 12 P. ARELLANO, et al., 14 FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAPUERIS BE DENIED 15 (ECF No. 2) 13 Defendants. 16 17 Plaintiff Tyrone Reynolds is proceeding pro se in this civil rights action filed pursuant to 18 42 U.S.C. § 1983. 19 Plaintiff filed the instant complaint on November 16, 2022, along with a motion to 20 proceed in forma pauperis. (ECF No. 2.) 21 I. 22 LEGAL STANDARD 23 Title 28, United States Code, Section 1915(a)(1) permits a plaintiff to bring a civil action 24 “without prepayment of fees or security thereof” if the plaintiff submits a financial affidavit that 25 demonstrates the plaintiff's “is unable to pay such fees or give security therefor.” A prisoner 26 seeking to bring a civil action must, in addition to filing an affidavit, “submit a certified copy of 27 the trust fund account statement ... for the 6-month period immediately preceding the filing of the 28 1 1 complaint ... obtained from the appropriate official of each prison at which the prisoner is or was 2 confined.” 28 U.S.C. § 1915(a)(2). 3 II. 4 DISCUSSION 5 Plaintiff has filed an application declaring that, due to his poverty, he is unable to pre-pay 6 the full amount of fees and costs for these proceedings or give security therefor, and that he 7 believes that he is entitled to the relief sought in his complaint. Plaintiff attached a copy his 8 prison trust account statement from Kern Valley State Prison. (ECF No. 2). The statement 9 provides the activity in Plaintiff's inmate trust account from October 1, 2021 to October 12, 10 2022, and reflects that Plaintiff currently has an available sum of $691.69 on account to his 11 credit. The trust account statement report indicates that Plaintiff has no encumbrances or 12 obligations on the money in his account and that Plaintiff has fulfilled all of his restitution fines. 13 Thus, the available balance in Plaintiff’s account reflects that he can pay the $402.00 filing fee 14 for this action. 15 Based on the foregoing, the information that Plaintiff has provided to the Court reflects 16 that he is financially able to pre-pay the entire filing fee to commence this action. Although the 17 Ninth Circuit Court of Appeals has held that “the filing fee ... should not take the prisoner's last 18 dollar,” Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995), in these circumstances, it appears 19 Plaintiff has sufficient funds to pre-pay the $402.00 filing fee with money left over. Should 20 Plaintiff have additional information to provide the Court, or should his available balance change 21 by the time he receives this order, he may notify the Court. However, the Court has the authority 22 to consider any reasons and circumstances for any change in Plaintiff's available assets and 23 funds. See also Collier v. Tatum, 722 F.2d 653, 656 (11th Cir. 1983) (district court may consider 24 an unexplained decrease in an inmate's trust account, or whether an inmate's account has been 25 depleted intentionally to avoid court costs). Therefore, Plaintiff's motion to proceed in forma 26 pauperis must be denied. If Plaintiff wishes to proceed with this action, Plaintiff must pre-pay the 27 $402.00 filing fee in full. 28 /// 2 1 III. 2 ORDER AND RECOMMENDATIONS Accordingly, it is HEREBY ORDERED that the Clerk of the Court to randomly assign a 3 4 Fresno District Judge to this action. 5 Further, IT IS HEREBY RECOMMENDED that: 6 1. Plaintiff's motion to proceed in forma pauperis, (ECF No. 2), be DENIED; and 7 2. Plaintiff be ordered to pay the $402.00 filing fee in full in order to proceed with this action. 8 These Findings and Recommendations will be submitted to the United States District 9 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 11 (14) days after being served with these Findings and Recommendations, Plaintiff may file 12 written objections with the court. The document should be captioned “Objections to Magistrate 13 Judge's Findings and Recommendations.” Plaintiff is advised that the failure to file objections 14 within the specified time may result in the waiver of the “right to challenge the magistrate's 15 factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 16 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. 19 Dated: November 18, 2022 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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