United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A
DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATIONS
RECOMMENDATION PLAINTIFF'S MOTION TO PROCEED IN FORMA
PAUPERIS BE DENIED [ECF NO. 3]
Randy James Geren is appearing pro se in this civil
rights action pursuant to 42 U.S.C. § 1983.
filed the instant action on November 25, 2019, along with a
motion to proceed in forma pauperis.
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, due to his poverty,
he is unable to pre-pay the full amount of fees and costs for
these proceedings or give security therefor, and that he
believes that he is entitled to the relief sought in his
complaint. On November 27, 2019, the Court received a
certified copy of Plaintiff's inmate trust account
statement showing the activity in Plaintiff's account for
the previous six months.
certified inmate account statement indicates that he
currently has an available sum of $437.30 on account to his
credit at San Quentin State Prison. Further, the account
statement indicates that, on May 1, 2019, Plaintiff's
beginning balance was $519.36, and that, after numerous
withdrawals and other transactions, Plaintiff had $437.30 in
his account on November 26, 2019. According to the certified
inmate account statement, the average amount deposited in
Plaintiff's account each month is approximately $325.50.
on the foregoing, the information that Plaintiff has provided
to the Court reflects that he is financially able to pre-pay
the entire filing fee to commence this action. Although the
Ninth Circuit Court of Appeals has held that “the
filing fee … should not take the prisoner's last
dollar, ” Olivares v. Marshall, 59 F.3d 109,
112 (9th Cir. 1995), in these circumstances, Plaintiff has
enough funds to prepay the $400 filing fee and have money
left over. Plaintiff has also consistently 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 the Court,
or should his available balance change by the time he
receives this order, 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. See also Collier v. Tatum, 722
F.2d 653, 656 (11th Cir. 1983) (district court may consider
an unexplained decrease in an inmate's trust account, or
whether an inmate's account has been depleted
intentionally to avoid court costs).
Plaintiffs application to proceed in forma pauperis
must be denied. If Plaintiff wishes to proceed with this
action, Plaintiff must pre-pay the $400.00 filing fee in
ORDER AND RECOMMENDATIONS
the Court HEREBY ORDERS the Clerk of the Court to randomly
assign a Fresno District Judge to this action.
IT IS HEREBY RECOMMENDED that:
1. Plaintiffs application to proceed in forma
pauperis, (ECF No. ...