Opinion
2:21-cv-2104 DB
04-04-2022
ELIJAH LEE MILLER, Plaintiff, v. MULE CREEK STATE PRISON, et al., Defendants.
ORDER VACATING FINDINGS AND RECOMMENDATIONS; ORDER TO PAY FILING FEE (ECF No. 7)
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE.
Plaintiff is a state prisoner proceeding pro se. On February 11, 2022, the undersigned issued findings and recommendations recommending this case be dismissed because the complaint contained identical allegations to an earlier-filed case, Miller v. MCSP, et al., No. 2:21-cv-2002 JAM DMC.
In Miller v. MCSP, No. 2:21-cv-2002 JAM DMC (the “prior case”), the court determined based on a review of plaintiff's prison trust account statement that, as of November 3, 2021, plaintiff had $1,994.60 in available funds, which the court then determined to be an amount sufficient to pre-pay the filing fees for this action. The outcome of the prior case was a dismissal without prejudice to refiling upon pre-payment of the filing fee.
Because the prior case was dismissed without prejudice to refiling, the undersigned finds it appropriate to vacate the recommendation to dismiss this case as duplicative to the prior case and to review plaintiff's request to proceed in forma pauperis in the present case.
Plaintiffs application to proceed in forma pauperis in the present case, filed on November 15, 2021, stated plaintiff had received $3213.51 in gifts and inheritances in the last 12 months and did not expect to receive more money. (ECF No. 2.) According to a prison trust account statement, plaintiff had $1,755.42 in available funds on November 18, 2021. (ECF No. 4.) This is an amount sufficient to pre-pay the filing fee.
If leave to file in forma pauperis is granted, then plaintiff will still be required to pay the filing fee but will be allowed to pay it in installments. Litigants proceeding in forma pauperis are not required to pay the $52.00 administrative fee.
Plaintiff was able to pay the filing fee and costs at the time of filing this action. Plaintiff has not made the showing of indigency required by 28 U.S.C. § 1915(a). See Olivares v. Marshall 59 F.3d 109, 112 (9th Cir. 1995); Alexander v. Carson Adult High Sch., 9 F.3d 1448, 1449 (9th Cir. 1993).
Plaintiff will be allowed an opportunity to submit the required fees totaling $402.00 to proceed in this case. If plaintiff wants to proceed with this case but can no longer pay the filing fee, then plaintiff shall inform the court why he can no longer pay the fee. See Alexander, 9 F.3d at 1449. Plaintiff is cautioned that failure to pay the fee or explain why he cannot do so will result in a recommendation that the application to proceed in forma pauperis be denied and the instant action be dismissed without prejudice.
In accordance with the above, IT IS HEREBY ORDERED:
1. The findings and recommendations filed February 11, 2022 (ECF No. 7) are VACATED;
2. Plaintiff shall submit, within twenty (20) days from the date of this order, the required fees in the amount of $402.00; if plaintiff can no longer pay the filing fee, then plaintiff must inform the court why he can no longer pay the fee; failure to comply with this order will result in a recommendation that this action be dismissed.