1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEMETRIOUS A. MOORE, No. 1:20-cv-00451-NONE-SAB (PC) 12 Plaintiff,

ORDER DECLINING TO ADOPT FINDINGS

13 v. AND RECOMMENDATIONS AND GRANTING

APPLICATION TO PROCEED IN FORMA

14 UNITED STATES OF AMERICA, et al., PAUPERIS

15 Defendants. (Doc. Nos. 8, 13) 16 17 Plaintiff Demetrious A. Moore is appearing pro se in this civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff commenced this action by filing a complaint (Doc. No. 1) and an application 19 to proceed in forma pauperis (Doc. No. 8). The matter was referred to a United States Magistrate 20 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On March 31, 2020, the magistrate judge issued findings and recommendations, 22 recommending that plaintiff’s motion to proceed in forma pauperis be denied because plaintiff has 23 sufficient funds to pay the $400.00 filing fee. (Doc. No. 13.) Those findings and recommendations 24 were served on plaintiff and contained notice that any objections thereto were to be filed within 25 fourteen days (14) after service. (Id.) Plaintiff filed objections on April 23, 2020. (Doc. No. 15.) 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has conducted 27 a de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s 28 objections, the undersigned declines to adopt the findings and recommendations. 1 In plaintiff’s in forma pauperis application, the authorized prison official certified that 2 plaintiff: (1) had, as of February12, 2020,1 $558.31 in his account; (2) during the prior six-month 3 period, the prisoner’s average monthly account balance was $136.78; and (3) the average amount 4 deposited monthly in the account during the prior six-month period was $1,558.22. (Doc. No. 8 at 3.) 5 The inmate trust account statement plaintiff filed in connection with the pending in forma 6 pauperis application confirms the amounts for the first two figures. (Doc. No. 7 at 8.) However, the 7 $1,558.22 figure given as the average monthly deposit into plaintiff’s account during the prior six- 8 month period actually appears to reflect the sum of plaintiff’s deposits over a six-month period, not the 9 average monthly deposit amount. (Id.) Indeed, further examination of the record indicates that the 10 average monthly amount deposited in plaintiff’s account during the prior six-month period is only 11 $167.78.2 Relying upon the authorized prison official’s certification regarding plaintiff’s trust 12 account, including the erroneous figure given as the average monthly deposit to plaintiff’s account, the 13 magistrate judge found that plaintiff could pay the entire $400 filing fee. (Doc. No. 13 at 3.) 14 Plaintiff objects to the pending findings and recommendations on the grounds that he relies on 15 financial support from his family, and that his family members are no longer able to support him 16 during the current COVID-19 pandemic because the workforce has been disrupted. (Doc. No. 15 at 17 2.) Plaintiff also indicates that he has been unable to work inside prison for marginal pay, apparently 18 referring to the COVID-19 crisis. (See id.) 19 The determination as to whether a plaintiff is indigent and therefore unable to pay the filing fee 20 falls within the court’s sound discretion. See California Men’s Colony v. Rowland, 939 F.2d 854, 858 21 (9th Cir. 1991), rev’d on other grounds, 506 U.S. 194 (1993). In light of the actual average monthly 22 deposit amount into plaintiff’s account and the financial circumstances plaintiff contends his family is 23 facing, as set forth in a sworn statement (Doc. No. 15 at 3), the undersigned declines to adopt the 24 25 1 This date is nearly a month after plaintiff filed his complaint in this action. (Doc. No. 7 at 8.) 26 2 For the six-month period between July 13, 2019 through January 13, 2020 (the date plaintiff 27 commenced this action), plaintiff’s deposits were as follows: $100 + $6.25 + $5.25 + $75 + $50 + $5.25 + $11.25 + $45 + $5.25 + $91 + $11.25 + $200 + $29.17 + $5.25 + $40 + $20 + $45 + $5.25 + 28 $1.25 + $100 + $150 + $5.25 = $1,006.67 / 6 (months) = $167.78. (Id. at 2–7.) LOU UVTI LIN INR SN UO I Ee AYO VU VI

1 || pending findings and recommendations and will instead grant plaintiffs in forma pauperis 2 || application. 3 For the reasons set forth above: 4 1. The undersigned declines to adopt the March 31, 2020 findings and recommendations 5 (Doc. No. 13); 6 2. Plaintiffs application to proceed in forma pauperis (Doc. No. 8) is GRANTED; and 7 3. The matter is referred back to the assigned magistrate judge for proceedings consistent 8 with this order. 9 10 || IT IS SO ORDERED. ~ Tl! Dated: _ June 4, 2020 Pa L “74 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28