Opinion
1:21-cv-00668-DAD-BAM (PC)
06-16-2021
JESUS CHIPREZ, Plaintiff, v. WARDEN, et al., Defendants.
AMENDED ORDER DECLINING TO ADOPT PENDING FINDINGS AND RECOMMENDATIONS
The court issues this amended order to correct the caption.
(DOC. NOS. 2, 8, 10)
Plaintiff Jesus Chiprez is a state prisoner appearing pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 21, 2021, plaintiff initiated this action and also filed an application for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. Nos. 1, 2.) On April 23, 2021, plaintiff filed his prisoner trust fund account statement. (Doc. No. 6.)
On April 27, 2021, the assigned magistrate judge issued findings and recommendations, recommending that plaintiff's application to proceed in forma pauperis be denied and that plaintiff be required to pay the filing fee in full to proceed with this action based on the belief that plaintiff's prisoner trust fund account statement showed a balance of $5,000.00 and plaintiff was thus able to afford the costs of this action. (Doc. No. 8.) Those findings and recommendations were served on plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 2.)
On May 13, 2021, instead of filing any objections, plaintiff filed a motion offering to the full filing fee in order to proceed with this action if he has funds in his trust account to do so and enclosed a trust account withdrawal form to assist the court in withdrawing the full filing fee if funds were available. (Doc. No. 10.) On May 20, 2021, a letter written by plaintiffs describing his continuing inability to have his account charged for the filing fee was docketed with the court. (Doc. No. 11.)
While several deposits that added up to $5,000 had been credited to plaintiff's account on April 20, 2021, the prisoner trust fund account statement also reflects that plaintiff's current available balance in that account as $0.00, thus indicating that no funds are able to be withdrawn. (Doc. Nos. 6 at 1; 11 at 4.) Both plaintiff's prisoner trust fund account statement and his motion, in which he states he wishes to pay the full filing fee, reference restitution fines and other holds and encumbrances placed on his inmate trust account (Doc. Nos 6 at 1-2; 10 at 1), and it is those entries which establish that funds in plaintiff's trust account are not available to pay the filing fee. Given a trust account balance of $0.00, plaintiff has made the requisite showing for in forma pauperis status required by 28 U.S.C. § 1915(a), and accordingly, plaintiff will be granted leave to proceed in this action in forma pauperis. Plaintiff's motion to pay full filing fee to proceed with this action is therefore denied as having been rendered moot.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. § 1915(b)(1). Plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. § 1915(b)(2).
Accordingly, 1. The court's June 16, 2021 order (Doc. No. 12) is vacated;
2. The court declines to adopt the findings and recommendations issued on April 27, 2021 (Doc. No. 8);
3. In accordance with 28 U.S.C. § 1915(g), plaintiff's application to proceed in forma pauperis (Doc. No. 2) is granted:
a. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be collected and paid in accordance with this court's order.
b. The Director of the California Department of Corrections or a designee shall collect from plaintiff's prison trust account the filing fee by collecting monthly payments from plaintiff's prison trust account in an amount equal to twenty percent (20%) of the preceding month's income credited to the prisoner's trust account and forwarding payments to the Clerk of the Court each time the amount in the account exceeds $10.00 in accordance with 28 U.S.C. § 1915(b)(2). The payments shall be clearly identified by the name and number assigned to this action.
c. The Clerk of the Court is directed to serve a copy of this order and a copy of plaintiff's in forma pauperis application (Doc. No. 2) on the Director of the California Department of Corrections.
d. The Clerk of Court is directed to serve a copy of this order on the Financial Department of the U.S. District Court, Eastern District of California; and
4. Plaintiff's motion to pay full filing fee to proceed with this action, (Doc. No. 10), is denied as having been rendered moot; and
5. This case is referred back to the assigned magistrate judge for further proceedings consistent with this order.
IT IS SO ORDERED.