United States District Court, E.D. California
RODNEY C. BUCKLEY, Jr., Plaintiff,
PARKS, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S
APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISS WITHOUT
PREJUDICE BECAUSE OF UNTRUE POVERTY ALLEGATION (DOCS. 2, 7,
10) TWENTY-ONE (21) DAY DEADLINE
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Rodney C. Buckley, Jr., is a state prisoner proceeding
pro se in this action pursuant to 42 U.S.C. §
1983. On May 14, 2019, Plaintiff filed this civil rights
action along with a motion to proceed in forma
pauperis. As required, Plaintiff included a report of
activity in his inmate trust account for the six months
before initiating this action with his in forma
pauperis application. (Doc. 2.) The report indicates
that during the six months prior to filing this action,
Plaintiff received an average of $264.59 each month.
(Id.) Overall, Plaintiff received income totaling
$1, 587.56 in that time-frame. (Id.) The report also
shows that during that same time, Plaintiff spent nearly that
entire sum, for an average of $248.29 each month.
an order issued on May 28, 2019, for Plaintiff to show cause
(“OSC”) within twenty-one (21) days why this
action should not be dismissed based on untrue poverty
allegation in his application to proceed in forma
pauperis. (Doc. 7.) Plaintiff then filed a second
application to proceed in forma pauperis, (Doc.
and a notice regarding his trust account statement, (Doc.
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 had 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 F.2d 65.
notice regarding his trust account statement, Plaintiff
appears to justify the expenditures from his trust account by
stating that he “just finished paying legal fees for a
state case in family court, No. 18 FL01669, ” and
“sought to have a family visit with his child for the
very first time within 12 ½ years, where he had to pay
extra money due to legal fees.” (Doc. 11.)
Plaintiff's trust account, however, shows that only
$246.86 of the $1, 587.56 he received in the six months
before he filed this action went to pay fees in No.
18FL01669. (Doc. 4, pp. 1-2.) This left a sum of $1, 340.70
from which Plaintiff could have easily paid the filing fees
in this action.
also states that he “can only spend $220 at his canteen
for items, where he can never dictate or predict when
he'll receive or how much money he'll receive.”
(Doc. 11.) The 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
of other use of available funds which the inmate considered
more worthwhile than 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, in the months leading up to the filing
of this action, Plaintiff prioritized purchases from the
canteen and other vendors over payment of 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 $1, 587.56 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 over one thousand dollars at his disposal
within six months of the date he filed this action, which he
chose to spend elsewhere. 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 first
application to proceed in forma pauperis, filed on
May 14, 2019, (Doc. 2), be DENIED; that his second
application, filed on June 19, 2019, (Doc. 10), be
disregarded as untimely; and this action be dismissed without