United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S
MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISS WITHOUT
PREJUDICE BECAUSE OF UNTRUE POVERTY ALLEGATION (DOC. 2, 6,
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
Sherman Alan Brown, is a state prisoner proceeding pro
se in this civil rights action pursuant to 42 U.S.C.
§ 1983, which he filed on September 28, 2017. (Doc. 1.)
Along with the Complaint, Plaintiff filed a motion to proceed
in forma pauperis. (Doc. 2.) Later that same date,
the California Department of Corrections and Rehabilitation
submitted a certified prison trust account statement for
Plaintiff. (Doc. 6.) Upon review, Plaintiff's trust
account reflects an average balance between one thousand
dollars and three thousand dollars for the five month period
before Plaintiff filed this action. (Id.) Thus, on
October 20, 2017, an order issued for Plaintiff to show cause
(“OSC”) within twenty-one (21) days why this
action should not be dismissed based on his untrue poverty
allegation in his application to proceed in forma
pauperis. (Doc. 9.) Despite lapse of more than the
allowed time, Plaintiff has failed to respond to the OSC in
indigent party may be granted permission to proceed in
forma pauperis upon submission of an affidavit showing
inability to pay the required fees. 28 USC § 1915(a).
The determination as to whether a plaintiff is indigent and
therefore unable to pay the filing fee falls within the
court's sound discretion. California Men's Colony
v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (reversed
on other grounds).
trial court must be careful to avoid construing the statute
so narrowly that a litigant is presented with a Hobson's
choice between eschewing a potentially meritorious claim or
foregoing life's plain necessities.” Temple v.
Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984), citing
Potnick v. Eastern State Hospital, 701 F.2d 243, 244
(2d Cir. 1983) (per curiam); Carson v. Polley, 689
F.2d 562, 586 (5th Cir. 1982). “But, 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.” Temple, 586 F.Supp. at 850,
citing Brewster v. North American Van Lines,
Inc., 461 F.2d 649, 651 (7th Cir. 1972).
“in forma pauperis is a privilege not a
right.” Smart v. Heinze, 347 F.2d 114, 116
(9th Cir. 1965). 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) (affirming district court denial of in forma
pauperis where in past 12 months, plaintiff received a
sum of $5, 000 settling a civil action and no indication it
was unavailable to plaintiff) (citing, Temple, 586
F.Supp. at 851(quoting In re Stump, 449 F.2d 1297,
1298 (1st Cir. 1971) (per curiam)).
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 has not shown that he has any
dependents who would have been deprived of the necessities of
life if he paid the filing fee in full and, since Plaintiff
is currently incarcerated, the State of California is paying
for his necessities of daily life. Williams, 877
Court is entitled to consider the economic priority Plaintiff
placed on the use of monies in his inmate trust account.
See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir.
1995) (citing Alexander v. Carson Adult High School,
9 F.3d 1448, 1449 (9th Cir. 1993). A district court is
entitled to honor an inmate's decision to use available
funds for purposes which the inmate considered more
worthwhile than payment of a federal court 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, in the months leading up to
Plaintiff's initiation of this action, Plaintiff clearly
prioritized a number of purchases and transactions over his
obligation to pay the filing fee.
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 immaterial whether
Plaintiff chose to spend the thousands of dollars that
filtered in and out of his trust account in the months prior
to filing this action elsewhere, or retained some that he
could have used to pay the filing fee for this action but
chose not to do so. Plaintiff had thousands of dollars at his
disposal within six months of the date he filed this action.
He thus did not qualify as impoverished when he filed his
application to proceed in forma pauperis.
“[T]he court shall dismiss the case at any time if the
court determines the allegation of poverty is untrue.”
28 U.S.C. § 1915(e)(2)(A).
it is HEREBY RECOMMENDED that
Plaintiff's application to proceed in forma
pauperis, filed on September 28, 2017 (Doc. 2), be
DENIED and that this action be dismissed
without prejudice to Plaintiff's refiling with prepayment
of the $400.00 filing fee.
Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. § 636(b)(1).
Within 21 days after being served
with these Findings and Recommendations, Plaintiff may file
written objections with the Court. The document should be
captioned “Objections to Magistrate Judge's
Findings and Recommendations.” Plaintiff is informed
that failure to file objections within the specified time may
result in the waiver of ...