United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENYING PLAINTIFF'S APPLICATION TO PROCEED
IN FORMA PAUPERIS (ECF Nos. 2)
Choon Rhey is a state prisoner proceeding pro se in this
civil rights matter pursuant to 42 U.S.C. § 1983.
Plaintiff initiated this action on May 5, 2017 by filing a
complaint. (ECF No. 1.) Along with the complaint, Plaintiff
filed an application to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. (ECF No. 2.) The matter was referred
to a United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 302.
application to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 is currently before the Court.
U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil
action “without prepayment of fees or security
thereof” if the plaintiff submits a financial affidavit
that demonstrates the plaintiff's “is unable to pay
such fees or give security therefor.” A prisoner
seeking to bring a civil action must, in addition to filing
an affidavit, “submit a certified copy of the trust
fund account statement . . . for the 6-month period
immediately preceding the filing of the complaint . . .
obtained from the appropriate official of each prison at
which the prisoner is or was confined.” 28 U.S.C.
has filed an application declaring that he is unable to pay
the fees for these proceeds or give security therefor, and
that he is entitled to the relief sought in his complaint.
Plaintiff's application is supported by a certified
inmate statement report printed on May 17, 2017 by an
official at San Quentin State Prison, where Plaintiff is
currently housed. The statement does not cover the entire
six-month period preceding the filing of the complaint, but
instead only shows transactions as of April 1, 2017.
certified inmate statement report indicates that he currently
has an available sum of $1, 135.55 on account to his credit
at his institution. Specifically, Plaintiff's beginning
balance as of April 1, 2017 was $1, 397.16, and he has
recently spent some funds on legal mail ($8.81) and some
funds on purchases at his institution ($252.80), leaving him
with the current available balance noted above. The
application and supporting information further demonstrates
that Plaintiff has no dependents relying on him for financial
support, and that he currently owes no restitutions or fines,
and has no other obligations or encumbrances.
on the foregoing, Plaintiff has not provided a completed
financial affidavit reflecting his assets for the six-month
period preceding the filing of his complaint, as required.
Furthermore, the information Plaintiff has provided reflects
that he is financially able to prepay the entire filing fee
to commence this action. Although the Ninth Circuit Court of
Appeals has held that “the filing fee, while
discretionary, should not take the prisoner's last
dollar.” Olivares v. Marshall, 59 F.3d 109,
112 (9th Cir. 1995). In these circumstances Plaintiff has
sufficient funds to prepay the $400 filing fee with hundreds
of dollars left over for his discretionary use. Plaintiff has
also recently spent funds on discretionary purchases. See
id. (district court entitled to consider an inmate's
choices in spending money, such as between a filing fee and
comforts purchased in the prison commissary).
Plaintiff have additional information to provide, he may
notify the Court. However, the Court has the authority to
consider any reasons and circumstances for any change in
Plaintiff's available assets and funds should the fund
balance deplete considerably where he is now unable to prepay
the filing fee. See Collier v. Tatum, 722 F.2d 653,
656 (11th Cir. 1983) (district court may consider an
unexplained decrease in an ...