Opinion
CASE NO. 1:20-cv-0669 JLT (PC)
05-14-2020
JAMES GREGORY GARCIA, Plaintiff, v. RALPH M. DIAZ, et al., Defendants.
ORDER DIRECTING CLERK OF COURT TO ASSIGN A DISTRICT JUDGE; AND
FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS
(Doc. 2)
FOURTEEN-DAY DEADLINE
Plaintiff moves for leave to proceed in forma pauperis in this action. (Doc. 2.) His application reveals that he has $6,500 in cash. In addition, the certified prisoner trust fund account statement detailing plaintiff's inmate account shows that, since November 2019, plaintiff has maintained an account balance at or above $6,400. (See Doc. 6.)
Proceeding "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 in forma pauperis, 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). It appears that plaintiff has had sufficient funds over the last several months to be required to pay the filing fee in full to proceed in this action. Accordingly, the Court ORDERS the Clerk of Court to assign a district judge to this case; and
The Court RECOMMENDS that plaintiff's application to proceed in forma pauperis be DENIED and plaintiff be required to pay the filing fee in full before proceeding with 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 fourteen days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: May 14 , 2020
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE