Evans v. Solano County Sheriff

Filing 47

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 7/22/2020 RECOMMENDING that the assigned US District Judge certify that the appeal is not taken in good faith under 28 U.S.C. § 1915(a)(3) and deny plaintiff's 46 "motion for stay". Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD ANTHONY EVANS,

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No. 2:17-cv-0020-KJM-EFB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

SOLANO COUNTY SHERIFF,
Defendant.

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Plaintiff is a state prisoner proceeding without counsel in this action brought under 42

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U.S.C. § 1983. Plaintiff’s case was dismissed on October 10, 2019 and is on appeal to the U.S.

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Court of Appeals for the Ninth Circuit. ECF Nos. 38, 44. Currently before this court is the Court

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of Appeals’ request to the District Court to determine whether plaintiff’s in forma pauperis status

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should continue on appeal and plaintiff’s motion to stay deduction of court fees from his prison

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trust account. ECF Nos. 45, 46.

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In Forma Pauperis Status on Appeal

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In its orders screening plaintiff’s various complaints, the court informed plaintiff that he

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had impermissibly filed his claims in numerous pleadings, had joined unrelated claims, and had

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not made clear who the defendants were. ECF Nos. 13, 20. Plaintiff was given several

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opportunities to file a complaint that complied with the Federal Rules of Civil Procedure and

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stated a cognizable claim. See ECF Nos. 13, 20, 33. When he again filed a complaint that joined

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unrelated claims, failed to clearly identify all but one defendant, and failed to state a cognizable
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claim against that defendant, the court dismissed the case. Under these circumstances, the court

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must conclude that plaintiff’s appeal is not taken in good faith under 28 U.S.C. § 1915(a)(3).

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Plaintiff’s Motion Regarding Court Fee Deductions

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Under 28 U.S.C. § 1915(b), prisoners who proceed in forma pauperis must nevertheless

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pay the court filing fee through monthly deductions from their institutional trust accounts

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whenever those accounts have a balance greater than $10. Plaintiff appears to assert that his

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institution has changed that threshold to $25 and asks the court to order CDCR to stay the

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deductions from his account “pending an investigation” into the change. ECF No. 46. Plaintiff

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cites no authority in support of his request. Moreover, even if true, plaintiff’s claim about the

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threshold change would appear to benefit plaintiff rather than harm him. Absent any authority or

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reason for providing plaintiff with the relief he asks, the court must deny plaintiff’s request.

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Summary and Recommendation

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Accordingly, it is hereby RECOMMENDED that the United States District Judge

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assigned to this case certify that the appeal is not taken in good faith under 28 U.S.C. § 1915(a)(3)

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and deny plaintiff’s “motion for stay” (ECF No. 46).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: July 22, 2020.

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