Jerry A. Burton v. E. Silva, et al.

• Court: District Court, E.D. California
• Decided: September 30, 2025
• Docket: 1:25-cv-01164
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY A. BURTON, Case No.: 1:25-cv-01164-SKO 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY APPLICATION TO PROCEED IN 13 v. FORMA PAUPERIS

14 E. SILVA, et al., (Doc. 6)

15 Defendants. Clerk of the Court to Assign District Judge

17 Plaintiff Jerry A. Burton is appearing pro se in this civil rights action pursuant to 42 18 U.S.C. section 1983. 19 I. INTRODUCTION 20 Plaintiff initiated this action by filing a complaint on September 9, 2025. (Doc. 1.) 21 On September 12, 2025, the Court ordered Plaintiff to submit an application to proceed in 22 forma pauperis (IFP) or to pay the filing fee within 45 days. (Doc. 4.) 23 On September 22, 2025, Plaintiff submitted his application to proceed IFP. (Doc. 6.) The 24 application was accompanied by an Inmate Statement Report dated July 29, 2025. (Id. at 4-5.) 25 On September 23, 2025, the Clerk of the Court directed the California Department of 26 Corrections and Rehabilitation (CDCR) to submit an updated inmate trust statement for Plaintiff, 27 including activity for the previous six months. (Docket Entry 7 [Clerk’s Notice].) CDCR filed a 1 II. DISCUSSION 2 In the July 2025 Inmate Statement Report provided by Plaintiff, the starting balance on 3 January 29, 2025, was $678.97 and the available balance on July 29, 2025, was $850.85. (Doc. 6 4 at 4.) The report indicates Plaintiff received a total of $1,975 in JPAY deposits between late 5 January and late July 2025 and spent $1,774.95 in SALES during the same period. (Id.) 6 In the current September 26, 2025, Inmate Statement Report, Plaintiff’s starting balance 7 on March 1, 2025, was $494.27 and the available balance on September 26, 2025, was $784.30. 8 (Doc. 8.) The report also reflects that between March 1, 2025, and September 26, 2025, Plaintiff 9 received fourteen JPAY deposits totaling $2,255. (Id. at 1.) During that same period, Plaintiff 10 made seven SALES purchases for a total of $2,038.10. (Id.) The report reflects Plaintiff has 11 fulfilled his restitution and has no other financial obligations. (Id. at 2.) 12 During the nearly seven-month period between March 1 and September 26, 2025, Plaintiff 13 received an average of $322 a month in JPAY deposits. He spent all but approximately $215 of 14 the $2,255 deposited funds on SALES transactions. Prisoners, unlike non-prisoner litigants, are in 15 state custody “and accordingly have the ‘essentials of life’ provided by the government.” Taylor 16 v. Delatoore, 281 F.3d 844, 849 (9th Cir. 2002). And although the Ninth Circuit Court of Appeals 17 has held that “the filing fee ... should not take the prisoner's last dollar,” Olivares v. Marshall, 59 18 F.3d 109, 112 (9th Cir. 1995), the information reflected in Plaintiff’s Inmate Statement Report 19 dated September 26, 2025, reveals he had sufficient funds, specifically, $807.55, on September 9, 20 2025, to pre-pay the full $405 filing fee to initiate this action. (Doc. 8 at 1.) The report also 21 indicates Plaintiff will have adequate funds remaining for any incidental personal or commissary 22 expenses. (Id.) As a result, the undersigned finds Plaintiff is not entitled to proceed IFP. See, e.g., 23 Davis v. Doerer, No. 1:24-cv-01498 JLT SKO (PC), 2025 WL 915786, at *1 (E.D. Mar. 26, 24 2025) (finding plaintiff had sufficient funds to pay the full filing fee at the time he filed the 25 complaint and ordering payment of $405 within 30 days); Thomas v. Okwanoko, No. 1:23-cv- 26 00027-EPG (PC), 2023 WL 3571144, at *1 (E.D. Cal. Apr. 27, 2023) (recommending IFP be 27 denied because the prisoner “received more than enough funds to pay the filing fee prior to filing 1 Dignity Health, No. 1:20-cv-01778-JLT-HBK, 2022 WL 206757, at *2 (E.D. Cal. Jan. 24, 2022) 2 (“A court need not authorize a party to proceed in forma pauperis where that individual had the 3 funds to pay the filing fee, but subsequently chose to spend them elsewhere”), recommendation 4 adopted, 2023 WL 4305451 (E.D. Cal. June 30, 2023). 5 In sum, the Court concludes Plaintiff is not entitled to proceed IFP because he presently 6 has, and will continue to have, sufficient funds with which to pay the full filing fee for this action. 7 Therefore, the Court will recommend Plaintiff’s IFP application be denied and he be ordered to 8 pay the $405 filing fee for this action within 30 days. 9 III. CONCLUSION AND RECOMMENDATIONS 10 Accordingly, the Clerk of the Court is DIRECTED to randomly assign a district judge to 11 this action. 12 Based on the foregoing, the Court RECOMMENDS that: 13 1. Plaintiff’s application to proceed IFP (Doc. 6) be DENIED and Plaintiff be precluded 14 from proceeding IFP in this action; and 15 2. Plaintiff be ordered to pay the $405.00 filing fee in full within 30 days. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 18 after being served with a copy of these Findings and Recommendations, a party may file written 19 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 20 Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages 21 without leave of Court and good cause shown. The Court will not consider exhibits attached to 22 the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference 23 the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 24 reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation 25 may be disregarded by the District Judge when reviewing these Findings and Recommendations 26 // 27 // 1 under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any objections within the specified time 2 may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 3 Cir. 2014) 4 IT IS SO ORDERED. 5

6 Dated: September 29, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 7

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