1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CLEVELAND EVANS, Case No. 1:19-cv-00760-LJO-JLT (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DENY PLAINTIFF’S MOTION TO PROCEED

13 v. IN FORMA PAUPERIS

14 SHERMAN, et al., (Docs. 7-9)

15 Defendants. 21-DAY DEADLINE 16 17 On June 24, 2019, Plaintiff filed an application to proceed in forma pauperis. The Court 18 ordered Plaintiff to show cause why his application should not be denied due to the amount of money 19 in his inmate trust account. (Doc. 8.) Plaintiff filed a response in which he argues that the Court 20 should find him financially “below the poverty guidelines” because: settlement funds he received in 21 February of 2019 should not be taken into account; after he paid a #375 debt to a family member 22 from those settlement funds, Plaintiff never had more than $268.16 in any account; and that, at the 23 time he filed this action, Plaintiff only had $47.12, which was insufficient to pay the filing fee. (Doc. 24 9, p. 2.) Despite these arguments, the Court recommends that Plaintiff’s application be denied 25 because, within six months prior to filing this action, Plaintiff had more than sufficient funds to pay 26 the filing fee but chose to spend his money differently. 27 I. Legal Standard 28 The Court may grant an indigent party permission to proceed in forma pauperis upon 1 submission of an affidavit showing inability to pay the required fees. 28 USC § 1915(a). Proceeding 2 “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). A 3 party need not be completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de 4 Nemours & Co., 335 U.S. 331, 339-40 (1948). However, “[i]f an applicant has the wherewithal to 5 pay court costs, or some part thereof, without depriving himself and his dependents (if any there be) 6 of the necessities of life, then he should be required, in the First Circuit’s phrase, to ‘put his money 7 where his mouth is.’” Williams v. Latins, 877 F.2d 65 (9th Cir. 1989) (affirming district court denial 8 of in forma pauperis where in past 12 months, plaintiff received a sum of $5,000 settling a civil 9 action and no indication it was unavailable to plaintiff) (citing, Temple, 586 F.Supp. at 851(quoting 10 In re Stump, 449 F.2d 1297, 1298 (1st Cir. 1971) (per curiam)). The determination as to whether a 11 plaintiff is indigent and therefore unable to pay the filing fee falls within the court’s sound discretion. 12 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (reversed on other grounds). 13 “The trial court must be careful to avoid construing the statute so narrowly that a litigant is 14 presented with a Hobson’s choice between eschewing a potentially meritorious claim or foregoing 15 life’s plain necessities.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984), citing Potnick 16 v. Eastern State Hospital, 701 F.2d 243, 244 (2d Cir. 1983) (per curiam); Carson v. Polley, 689 F.2d 17 562, 586 (5th Cir. 1982). “But, the same even-handed care must be employed to assure that federal 18 funds are not squandered to underwrite, at public expense, either frivolous claims or the 19 remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar.” 20 Temple, 586 F. Supp. at 850, citing Brewster v. North American Van Lines, Inc., 461 F.2d 649, 651 21 (7th Cir. 1972). 22 In sum, to proceed in forma pauperis, a plaintiff need not demonstrate that he is completely 23 destitute, but his poverty must prevent him from paying the filing fee and providing his dependents 24 with the necessities of life. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 25 (1948). A “‘showing of something more than mere hardship must be made.’” Nastrom v. New 26 Century Mortg. Corp., No. 11-cv-1998, 2011 WL 7031499, at *1 (E.D. Cal. Dec. 7, 2011) (quoting 27 Martin v. Gulf States Utilities Co., 221 F.Supp. 757, 759 (W.D. La.1963)), report and 28 recommendation adopted by, 2012 WL 116563 (E.D. Cal. Jan.12, 2012). Since Plaintiff is currently 1 in prison, he is not providing for any dependents and the taxpayers of the State of California are 2 paying for his necessities of daily life. Williams, 877 F.2d 65. 3 Plaintiff filed this action on May 29, 2019. (Doc. 1.) His Inmate Account Statement for the 4 prior six-month period shows that his average monthly balance was $423.69 and the average monthly 5 deposits to his account was $242.65. (Doc. 7, p. 2.) From December 20, 2018, to May 25, 2019, 6 Plaintiff made purchases and totaling $1,940.93, which was more than sufficient to pay the $400 7 filing fee for this action. 8 The Court is entitled to consider the economic priority Plaintiff placed on the use of his 9 money, received from any source, see Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (citing 10 Alexander v. Carson Adult High School, 9 F.3d 1448, 1449 (9th Cir. 1993), and is entitled to honor 11 an inmate’s decision of other use of available funds which the inmate considered more worthwhile 12 than payment of a federal court’s filing fee, Olivares, at 112, (quoting Lumbert v. Illinois Department 13 of Corrections, 827 F.2d 257, 260 (7th Cir. 1987) (Noting peanut and candy “comforts” Olivares 14 purchased in the prison commissary; “If the inmate thinks a more worthwhile use of his funds would 15 be to buy peanuts and candy ... than to file a civil rights suit, he has demonstrated an implied 16 evaluation of the suit that the district court is entitled to honor.”).) Plaintiff clearly prioritized various 17 purchases for his own and repayment of a debt to a family member over his obligation to pay the 18 filing fee in this action. 19 The determination whether a party may proceed in forma pauperis is a “matter within the 20 discretion of the trial court and in civil actions for damages should be allowed only in exceptional 21 circumstances.” Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963); see also Franklin v. 22 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“court permission to proceed in forma pauperis is 23 itself a matter of privilege and not right; denial of in forma pauperis status does not violate the 24 applicant’s right to due process”). Plaintiff had more than enough money within six months of the 25 date he filed this action to pay the filing fee but chose to spend his money in other ways. Thus, 26 exceptional circumstances do not exist to grant Plaintiff’s motion to proceed in forma pauperis. 27 RECOMMENDATION 28 Accordingly, it is RECOMMENDED that Plaintiff’s application to proceed in forma 1 pauperis, filed on June 24, 2019 (Doc. 7), be DENIED and that this action be dismissed without 2 prejudice to refiling on prepayment of the $400.00 filing fee. 3 These Findings and Recommendations will be submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 21 days after 5 being served with these Findings and Recommendations, Plaintiff may file written objections with 6 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 7 Recommendations.” Plaintiff is informed that failure to file objections within the specified time may 8 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 9 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10

IT IS SO ORDERED.

11

12 Dated: August 21, 2019 /s/ Jennifer L. Thurston

UNITED STATES MAGISTRATE JUDGE

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