United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED
BECAUSE OF PLAINTIFF'S UNTRUE ALLEGATION OF POVERTY IN
FILING FOR IN FORMA PAUPERIS STATUS (DOC. 2) 21-DAY RESPONSE
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
Jason Quijeda, is a state prisoner proceeding pro se
in this action pursuant to 42 U.S.C. § 1983. On August
29, 2017, Plaintiff filed this civil rights action along with
a motion to proceed in forma pauperis. Plaintiff
included a report of activity in his inmate trust account for
the six months prior to initiating this action with his
in forma pauperis application. (Doc. 2, p. 4.) That
report indicates that, over the last six months, Plaintiff
received an average of $248.32 per month, and that the month
before filing this suit, Plaintiff received income totaling
$503.68. (Id.) That report also shows that, during
this same timeframe, Plaintiff spent an average of $274.14
each month. (Id.)
“in forma pauperis is a privilege not a
right.” Smart v. Heinze, 347 F.2d 114, 116
(9th Cir. 1965). While a party need not be completely
destitute to proceed IFP, Adkins v. E.I. DuPont
de Nemours & Co., 335 U.S. 331, 339-40 (1948),
“the same even-handed care must be employed to assure
that federal funds are not squandered to underwrite, at
public expense, either frivolous claims or the remonstrances
of a suitor who is financially able, in whole or in material
part, to pull his own oar.” Doe v. Educ. Enrichment
Sys., No. 15cv2628-MMA (MDD), 2015 U.S. Dist. LEXIS
173063, *2 (S.D. Cal. Dec. 30, 2015) (citing Temple v.
Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984)). A
party need not be completely destitute to proceed in
forma pauperis. Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 339-40 (1948). However,
“[i]f an applicant has the wherewithal to pay court
costs, or some part thereof, without depriving himself and
his dependents (if any there be) of the necessities of life,
then he should be required, in the First Circuit's
phrase, to ‘put his money where his mouth
is.'” Williams v. Latins, 877 F.2d 65 (9th
Cir. 1989). The court is required to “dismiss the case
at any time if the court determines the allegation of poverty
is untrue.” 28 U.S.C. § 1915(e)(2)(A).
to proceed in forma pauperis, a plaintiff need not
demonstrate that he is completely destitute, but his poverty
must prevent him from paying the filing fee and providing his
dependents with the necessities of life. See Adkins v.
E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40
(1948). A “‘showing of something more than mere
hardship must be made.'” Nastrom v. New Century
Mortg. Corp., No. 11-cv-1998, 2011 WL 7031499, at *1
(E.D. Cal. Dec. 7, 2011) (quoting Martin v. Gulf States
Utilities Co., 221 F.Supp. 757, 759 (W.D. La.1963)),
report and recommendation adopted by, 2012 WL 116563 (E.D.
Cal. Jan.12, 2012). Plaintiff is currently incarcerated.
Thus, the State of California is paying for Plaintiff's
daily necessities, and Plaintiff is likely not responsible
for providing any dependents with the necessities of life.
Williams, 877 F.2d 65.
district court is entitled to honor an inmate's decision
to think that it is more worthwhile to use his funds for
purchases, rather than for the payment of a federal
court's filing fee. See Olivares, at 112,
(quoting Lumbert v. Illinois Department of
Corrections, 827 F.2d 257, 260 (7th Cir. 1987) (Noting
peanut and candy “comforts” purchased in the
prison commissary; “If the inmate thinks a more
worthwhile use of his funds would be to buy peanuts and candy
... than to file a civil rights suit, he has demonstrated an
implied evaluation of the suit that the district court is
entitled to honor.”).) Here, Plaintiff clearly
prioritized his own purchases over the obligation to pay the
filing fee in this action as he had over $500.00 in deposits
to his account at his disposal the month before he filed this
action. Rather than pay the filing fee for this action, it
appears Plaintiff spent this money for his own comforts.
determination whether a party can proceed in forma
pauperis is a “matter within the discretion of the
trial court and in civil actions for damages should be
allowed only in exceptional circumstances.” Weller
v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963); see
also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir.
1984) (“court permission to proceed in forma pauperis
is itself a matter of privilege and not right; denial of in
forma pauperis status does not violate the applicant's
right to due process”).
it is HEREBY ORDERD to that
within 21 days of the date of
service of this order, Plaintiff must show cause why his
in forma pauperis status should not be denied and
this action dismissed ...