United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY THE CASE SHOULD NOT BE
DISMISSED BECAUSE OF PLAINTIFF'S UNTRUE ALLEGATION OF
POVERTY IN APPLICATION FOR IN FORMA PAUPERIS STATUS (DOC. 5)
TWENTY-ONE (21) DAY DEADLINE
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Mario Anton Lee, is a federal prisoner proceeding pro
se in this civil rights action pursuant to Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971) which he filed on January 26, 2018. (Doc. 1.)
Plaintiff filed a motion to proceed in forma
pauperis on February 16, 2018. (Doc. 2.) Upon review,
Plaintiff's trust account reflects an average monthly
balance of roughly $300.00, with an average of $183.35 in
monthly deposits for the five months prior to the date that
he filed this action.
“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)).
“[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). Based upon his trust account
statement, Plaintiff was not impoverished when he filed this
action and when he filed the motion to proceed in forma
appears that Plaintiff may have intended to file a habeas
corpus action rather than an action for civil rights
violation under Bivens. As an initial matter, there
are only three actions for damages which may be brought
against federal officers: (1) violation of the Fourth
Amendment's prohibition against unreasonable searches and
seizures, Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971); (2) Fifth Amendment
violation for gender-discrimination, Davis v.
Passman, 442 U.S. 228 (1979); and (3) violation of the
Eighth Amendment's Cruel and Unusual Punishments Clause,
Carlson v. Green, 446 U.S. 14 (1980). Ziglar v.
Abbasi, et al., ___ U.S. ___, 137 S.Ct. 1843, 1848 (June
Plaintiff's allegations are based on disciplinary
proceedings. (Doc. 1.) Plaintiff states that he lost
“good time” and seeks “[t]o have the
incident report overturned, vacated, expunged, or
reversed.” (Id.) However, the United States
Supreme Court has determined that an inmate may not bring a
civil action if its success would release the claimant from
confinement or shorten its duration, Preiser v,
Ridrugyez, 411 U.S. 475, 500 (1973); Young v.
Kenny, 907 F.2d 874 (9th Cir. 1990), cert.
denied 11 S.Ct. 1090 (1991), or would necessarily imply
the invalidity of the conviction or sentence, Heck v.
Humphrey, 512 U.S. 477, 487 (1994). Where a
plaintiff's success in an action would necessarily imply
the invalidity of his underlying conviction or sentence, he
must first “prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254.” Heck at 487-88. “A claim
for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable
under § 1983.” Id. at 488. This
“favorable termination” requirement has been
extended to actions that, if successful, would imply the
invalidity of prison administrative decisions which result in
a forfeiture of good- time credits. Edwards v.
Balisok, 520 U.S. 641, 643-647 (1997). Thus, if reversal
of the disciplinary incident report from Plaintiff's file
would result in resurrection of any good-time credits,
Plaintiff must show that the guilty finding on which they
were based has been invalidated.
Plaintiff does not allege facts to support a finding that the
disciplinary incident report against him has been favorably
terminated. Accordingly, it is HEREBY ORDERD to that
within twenty-one (21) days of the date of service
of this order, Plaintiff shall show cause why his in
forma pauperis status should not be denied and this
action dismissed without prejudice to refiling with
prepayment of the filing fee. Alternatively, if Plaintiff
desires to pursue this as a habeas corpus action
under 28 U.S.C. § 2254, he shall file a statement
setting forth his intention to do so within that same time,
so this action can be redesignated and a different a filing
 In accordance with 28 U.S.C. §
1914(a), the filing fee for civil actions, including those
brought under 42 U.S.C. § 1983 is $350, while the filing
fee on application for ...