Opinion
1:22-cv-01223-GSA-PC
10-28-2022
COTTRELL L. BROADNAX, Plaintiff, v. FERNANDEZ, et al., Defendants.
ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT ORDER JUDGE TO THIS CASE
AND
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF'S MOTIONS TO PROCEED IN FORMA PAUPERIS BE DENIED (ECF Nos. 6, 14.)
OBJECTIONS, IF ANY, DUE IN 14 DAYS
GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE
I. FINDINGS
Cottrell L. Broadnax (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. On July 28, 2022, this case was commenced in the United States District Court for the Northern District of California. (ECF No. 1.) The case was transferred to this Court on September 23, 2022. (ECF No. 9.)
On August 31, 2022 and October 24, 2022, Plaintiff filed motions to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 6, 14.)
In his October 24, 2022 motion to proceed in forma pauperis, Plaintiff reports that he received $1,200.00 in stimulus funds on February 16, 2022. (ECF No. 14 at 1.) Plaintiff's prison trust account statement shows that on October 10, 2022, he had a balance of $945.66 in the account. (ECF No. 16.) Under these facts, the court finds that Plaintiff can afford the $402.00 filing fee for this action. Therefore, Plaintiff's motions to proceed in forma pauperis should be denied, and Plaintiff should be required to pay the filing fee of $402.00 for this action in full.
The Court notes that some, if not all, of the funds in Plaintiff's account may be from “stimulus checks.” (ECF No. 14 at 1.). However, Plaintiff has not cited to any law, and the Court is not aware of any, preventing “stimulus checks” from being included when determining whether a plaintiff can afford to pay the filing fee. Additionally, other courts in this district have included the funds when making the determination. See, e.g., Hammler v. Zydus Pharmacy, 2021 WL 3048380, at * 1-2 (E.D. Cal. July 20, 2021) (considering the plaintiff's “economic impact payments” when determining that the plaintiff was “financially able to pay the filing fee”); Corral v. California Highway Patrol, 2021 WL 2268877, at *1 (E.D. Cal. June 3, 2021) (findings and recommendations pending before district judge) (including the plaintiff's “pandemic stimulus payments” in determining that the “plaintiff has made an inadequate showing of indigency”).
II. RECOMMENDATIONS AND CONCLUSION
Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a United States District Judge to this case;
and
Based on the foregoing, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's motions to proceed in forma pauperis, filed on August 31, 2022 and October 24, 2022, be DENIED; and
2. Plaintiff be required to pay the $402.00 filing fee for this action in full.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after the date of service of these findings and recommendations, Plaintiff may file written objections with the court. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.