Opinion
1:21-cv-01005-NONE-BAM (PC)
08-28-2021
KEITH C. GIBBS, Plaintiff, v. PEOPLE OF THE COURT, Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS
(Doc. Nos. 10, 14)
TWENTY-ONE (21) DAY DEADLINE
Plaintiff Keith C. Gibbs is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff initiated this action on June 15, 2021, together with a motion requesting leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, in the Sacramento Division of the U.S. District Court for the Eastern District of California. (Doc. Nos. 1, 2.) Plaintiff filed a prisoner trust fund account statement on June 16, 2021. (Doc. No. 5.) The action was transferred to the Fresno Division on June 25, 2021. (Doc. No. 6.)
On June 28, 2021, the assigned magistrate judge issued an order denying plaintiff's application to proceed in forma pauperis, without prejudice, to allow plaintiff an opportunity to clarify his financial condition and adequately demonstrate financial hardship. (Doc. No. 8.) The magistrate judge noted that although plaintiff's certified trust account indicated a current available balance of $0.10, (Doc. No. 5), plaintiff also reported cash or checking or savings accounts in the amount of $50,000,000.00. (Doc. No. 2, pp. 3, 4.) Plaintiff was directed to explain whether he currently had access to $50,000,000.00, and if he did, why he was not using those funds to pay the filing fee for this action. (Doc. No. 8.)
On July 16, 2021, plaintiff filed a renewed application to proceed in forma pauperis. (Doc. No. 10.) In this application, plaintiff again represented to this court that he had cash (including the balance of checking or savings accounts) in the total amount of $50,000,000.00. (Doc. No. 10, p. 2.) Plaintiff also represented that he had $300.00 in his prison trust account, had an average monthly balance of $300.00 during the past six months, and received average monthly deposits of $300.00 to his trust account. (Id.) Despite the magistrate judge's instructions, plaintiff failed to explain whether he currently had access to the $50,000,000.00 he claimed to possess, and why he had not used those funds to pay the filing fee for this action.
On July 19, 2021, the magistrate judge issued findings and recommendations that plaintiff's application to proceed in forma pauperis be denied and that plaintiff be required to pay the $402.00 filing fee in full to proceed with this action because he is able to afford the costs of this action. (Doc. No. 13.) The magistrate judge found that plaintiff's certified trust account statement, compared against plaintiff's application to proceed in forma pauperis, provided inconclusive evidence of plaintiff's financial condition. Nevertheless, as plaintiff continued to represent that he possesses $50,000,000.00 in cash or in checking or savings accounts and receives average monthly deposits to his trust account of $300.00, the magistrate judge found that plaintiff possesses more than sufficient financial means to pay the filing fee for this action. 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 3.)
On July 21, 2021, plaintiff filed a notice of change of address and another copy of his certified trust account statement. (Doc. Nos. 14, 15.) Although the notice of change of address indicated that plaintiff had moved from a residential address in Oakland, California to another residential address in Oakland, the magistrate judge found that the new address could not be verified, and that CDCR's inmate locator website indicated that plaintiff remained in the custody of CDCR. (Doc. No. 16.) The magistrate judge accordingly ordered the findings and recommendations re-served on plaintiff at the CDCR institution where he remained housed, and extended the deadline for filing objections. (Id.) No objections have been filed to the July 19, 2021 findings and recommendations, and the deadline to do so has expired.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, and although plaintiffs claimed access to $50,000,000.00 would appear to be implausible the court concludes that the magistrate judge's findings and recommendations are supported by the record and proper analysis.
Accordingly,
1. The findings and recommendations issued on July 19, 2021, (Doc. No. 13), are adopted in full;
3. In accordance with 28 U.S.C. § 1915(g), plaintiffs application to proceed in forma pauperis (Doc. No. 10) is denied; and
4. Within twenty-one (21) days following the date of service of this order, plaintiff shall pay the $402.00 filing fee in full to proceed with this action. If plaintiff fails to pay the filing fee within the specified time, this action will be dismissed without further notice.
IT IS SO ORDERED.