United States District Court, E.D. California
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
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.
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 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.
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
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.
Clerk of the Court is directed to randomly assign a district
court to this action.
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