Opinion
3:24-cv-05826-JCC-DWC
11-27-2024
ROBERT PARKER, Plaintiff, v. A. WILSON, et al., Defendants.
Noting Dated: December 16, 2024
JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
DAVID W. CHRISTEL UNITED STATES MAGISTRATE JUDGE
This prisoner civil rights action has been referred to United States Magistrate Judge David W. Christel. Plaintiff Robert Parker, proceeding pro se, filed a motion to proceed in forma pauperis (“IFP”), a certified copy of his prison trust account statement, and a proposed civil rights complaint. Dkts. 4, 4-1, 4-2. As set forth below, the undersigned recommends the IFP motion (Dkt. 4) be denied and Plaintiff be ordered to pay the $405.00 filing fee.
The right to proceed in forma pauperis is not absolute. O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). Rather, proceeding in forma pauperis is a matter within the sound discretion of the trial court in civil actions. Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963).
Plaintiff's IFP motion shows he has $2,337.65 cash on hand, Dkt. 4 at 2, and the average spendable balance in his prison trust account is $2,445.43, Dkt. 4-1. In his IFP motion, Plaintiff states he lost his job working in the kitchen at Stafford Creek Correction Center in July 2024. Dkt. 4 at 5; see also Dkt. 6. On October 21, 2024, the Court found Plaintiff has sufficient funds and can afford the filing fee irrespective of his current employment status and ordered Plaintiff to (1) show cause why his IFP motion should not be denied or (2) pay the filing fee not later than November 20, 2024. Dkt. 5 at 1-2. Plaintiff filed a timely Response, in which he maintains his IFP motion should be granted because of his lack of employment. Dkt. 6. Plaintiff has not paid the filing fee, see docket, and the deadline to do so has expired, Dkt. 5 at 2.
Plaintiff's Response does not alter the Court's finding that Plaintiff can afford to pay the filing fee based on the funds currently available to him. See Dkt. 5 at 1.
Accordingly, the undersigned recommends Plaintiff's IFP motion (Dkt. 4) be denied and Plaintiff be ordered to pay the $405.00 filing fee within 30 days of the date this Report and Recommendation is adopted. If Plaintiff fails to pay the filing fee by the court-imposed deadline, it is further recommended this action be dismissed without prejudice.
Objections to this Report and Recommendation, if any, should be filed with the Clerk not later than fourteen (14) days from the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar fourteen (14) days from the date they are filed. Responses to objections may be filed by the day before the noting date. If no timely objections are filed, the matter will be ready for consideration by the District Judge on December 16, 2024.
ORDER ADOPTING REPORT AND RECOMMENDATION
The Court, having reviewed the Report and Recommendation of Magistrate Judge David W. Christel, objections to the Report and Recommendation, if any, and the remaining record, does hereby find and ORDER:
(1) The Court adopts the Report and Recommendation.
(2) Plaintiff's Motion to Proceed In Forma Pauperis (Dkt. 4) is DENIED and he is directed to pay the $405.00 filing fee within 30 days of this Order. Plaintiff is advised that failure to pay the filing fee by that date will result in dismissal of this action without prejudice.
(3) The Clerk is directed to send copies of this Order to Plaintiff and to the Hon. David W. Christel.