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Potts v. Soleimani

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Mar 9, 2020
No. 1:19-cv-01574-DAD-GSA (PC) (E.D. Cal. Mar. 9, 2020)

Opinion

No. 1:19-cv-01574-DAD-GSA (PC)

03-09-2020

JAMES E. POTTS, Plaintiff, v. M. SOLEIMANI, et al., Defendants.


ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS (Doc. Nos. 2, 10.)

Plaintiff James E. Potts is a state prisoner proceeding pro se with this civil rights action 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 November 15, 2019, the assigned magistrate judge issued findings and recommendations, recommending that plaintiff's application to proceed in forma pauperis be denied due to his failure to show indigence under 28 U.S.C. § 1915. (Doc. No. 12.) The findings and recommendations were served on plaintiff and contained notice that any objections thereto were to be filed within fourteen days of service. (Id.) Although the deadline passed without plaintiff objecting or otherwise responding, he later filed untimely objections on December 19, 2019. (Doc. No. 13.) /////

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, including plaintiff's untimely objections, the court concludes that the findings and recommendations are supported by the record and proper analysis.

In his objections, plaintiff does not dispute that he has sufficient funds to pay the filing fee and instead claims that he has been trying to pay the $400.00 filing fee to the court since November 6, 2019, when he signed a form requesting a withdrawal from his prison trust account. (Doc. No. 13 at 1.) Plaintiff asserts that his counselor approved a withdrawal from his trust account on November 6, 2019, and raises the possibility that the filing fee was accidentally sent to the U.S. District Court for the Northern District of California, the court in which he originally filed his complaint. (Id.)

However, there is no record at this court or the Northern District that any payment was received for the filing fee in this case. See Potts v. Soleimani, et al., 4:19-cv-06645-KAW (PR) (N.D. Cal. 2019). Plaintiff is advised to follow up with the trust account office at his prison to determine whether the filing fee was withdrawn from his account and, if so, where it was mailed. If plaintiff obtains evidence of what happened to the filing fee, he should file a declaration with the court and submit a copy of the evidence.

Accordingly:

1. The findings and recommendations issued on November 15, 2019 (Doc. No. 10), are adopted in full;

2. Plaintiff's application to proceed in forma pauperis, filed on October 16, 2019 (Doc. No. 2), is denied for failure to show indigence under 28 U.S.C. § 1915;

3. Within thirty days from the date of service of this order, plaintiff must pay the $400.00 filing fee in full in order to proceed with this action;
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4. Failure to comply with this order shall result in the dismissal of this action without prejudice to refiling upon payment of the filing fee; and

5. This case is referred back to the magistrate judge for further proceedings.
IT IS SO ORDERED.

Dated: March 9 , 2020

/s/_________

UNITED STATES DISTRICT JUDGE


Summaries of

Potts v. Soleimani

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Mar 9, 2020
No. 1:19-cv-01574-DAD-GSA (PC) (E.D. Cal. Mar. 9, 2020)
Case details for

Potts v. Soleimani

Case Details

Full title:JAMES E. POTTS, Plaintiff, v. M. SOLEIMANI, et al., Defendants.

Court:UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Mar 9, 2020

Citations

No. 1:19-cv-01574-DAD-GSA (PC) (E.D. Cal. Mar. 9, 2020)