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Ortega v. Diaz

United States District Court, E.D. California

July 1, 2019

VICTOR ORTEGA, Plaintiff,
v.
DIAZ, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS (DOC. 2) 21-DAY DEADLINE CLERK OF COURT TO ASSIGN DISTRICT JUDGE

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         BACKGROUND

         Plaintiff filed this civil rights action along with a motion to proceed in forma pauperis. (Doc. 2.) 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.) That report indicates, over the last six months, Plaintiff received an average of $235.62 per month. (Id.) In the six months prior to filing suit, Plaintiff received income totaling $1, 413.74. (Id.) That report also shows that, in that same time Plaintiff spent nearly that entire sum at an average of $207.76 each month. (Id.) Plaintiff thus had more than sufficient funds to be required to pay the filing fee in full to proceed in this action.

         DISCUSSION

         I. Legal Standard

         An 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).

         “The 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).

         Proceeding “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)).

         In sum, 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 held at Avenal State Prison in Avenal, CA. Thus, the State of California is paying for his necessities of daily life. Williams, 877 F.2d 65.

         In the six months prior to filing suit, Plaintiff received income totaling $1, 413.74. In that same time Plaintiff spent nearly that entire sum at an average of $207.76 each month. Rather than pay the filing fee for this action, it appears Plaintiff spent his money for his own comforts. Thus, Plaintiff's application to proceed in forma pauperis should be denied.

         RECOMMENDATION

         Accordingly, the Court RECOMMENDS that Plaintiff's application to proceed in forma pauperis, filed on May 17, 2019 (Doc. 2), be DENIED and this action be dismissed without prejudice to refiling with prepayment of the filing fee.

         The Clerk of the Court is directed to randomly assign a district court to this action.

         These 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 ...


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