(PC) Matlock v. Kern County

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA RICHARD A. MATLOCK, Case No. 1:19-cv-01368-LJO-SAB (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS, AND REQUIRING KERN COUNTY, et al., PLAINTIFF TO PAY THE FILING FEE TO PROCEED WITH THIS ACTION 15 Defendants. (ECF Nos. 10, 11) TWENTY-ONE (21) DAY DEADLINE 18 Plaintiff Richard A. Matlock is a federal prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

21 On December 4, 2019, the assigned Magistrate Judge issued findings and recommendations that Plaintiff’s application to proceed in forma pauperis be denied on the ground that Plaintiff has sufficient assets to pay the filing fee in full, and that Plaintiff be required to pay the $400.00 filing fee in full in order to proceed with this action. (ECF No. 11.) The findings and recommendations were served on Plaintiff and contained notice that any objections thereto were to be filed within thirty (30) days after service. (Id.) Plaintiff timely filed objections on December 26, 2019. (ECF No. 12.)

28 In his objections, Plaintiff contends that this Court should decline to adopt the Magistrate Judge’s findings and recommendations and grant his application to proceed in forma pauperis because he has no guarantees of receiving any money from his mother and/or grandmother, the prison awards inmates who show financial responsibility with a lower security classification, and he uses the funds in his prison trust account to purchase approximately 75% of his sustenance from the commissary because the food provided by the Federal Bureau of Prisons is “not fit for human beings.” (ECF No. 12, at 2.)

7 However, the Court is “entitled to consider [Plaintiff’s] own economic choices about how to spend his money, as between his filing fee and comforts purchased in the prison commissary[.]” Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995). “If the inmate thinks a more worthwhile use of his funds would be to buy [food from the commissary] … than to file a civil rights suit, [the inmate] has demonstrated an implied evaluation of the suit that the district court is entitled to honor.” Id. (citation omitted). In this case, Plaintiff has clearly prioritized commissary purchases over his obligation to pay the filing fee in this action. More than a thousand dollars was deposited into Plaintiff’s account between April 30, 2019 and September 30, 2019, the date when this action was filed. Therefore, while Plaintiff had more than enough money to retain some funds in order to pay the filing fee for this action, Plaintiff chose instead to spend his money in other ways, such as on purchases from the commissary. Consequently, the Court finds that Plaintiff did not qualify as impoverished when he filed this action.

19 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s objections, the Court finds that the findings and recommendations are supported by the record and by proper analysis.

23 Accordingly, IT IS HEREBY ORDERED that: 24 1. The findings and recommendations issued on December 4, 2019, (ECF No. 11), 25 are adopted in full; 26 2. Plaintiff’s application to proceed in forma pauperis, (ECF No. 10), is DENIED; 27 3. Within twenty-one (21) days following the date of service of this order, Plaintiff 28 shall pay the $400.00 filing fee in full in order to proceed with this action; 1 4. Plaintiff is warned that if he fails to pay the filing fee within the specified time, 2 this action will be dismissed; and 3 5. This matter is referred back to the assigned Magistrate Judge for further 4 proceedings.

IT IS SO ORDERED.

7 Dated: January 4, 2020 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE