Opinion
1:06-cv-00658-OWW-SMS, Order Deeming Plaintiff's Declaration to be a first Amended Complaint (Doc. 7).
August 7, 2006
FINDINGS AND RECOMMENDATION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS
Plaintiff is proceeding pro se with an action concerning alleged civil rights violations. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304.
I. Declaration is Deemed a First Amended Complaint
On June 8, 2006, the Court granted Plaintiff's application to proceed in forma pauperis and ordered Plaintiff's original complaint, filed on May 30, 2006, dismissed with leave to file an amended complaint no later than thirty days after the date of service of the order. The order was served on June 8, 2006. On June 15, 2006, Plaintiff filed a declaration. The Court has reviewed the declaration and finds that it constitutes a first amended complaint filed in response to the Court's order of June 8, 2006. The declaration IS DEEMED to be a first amended complaint against the only three persons or entities named in it, namely, the Inyo County Sheriff's Department, Superior Court Judge Dean Stout, and Assistant District Attorney Cristensen.
II. Payment of Filing Fee
On July 17, 2006, Plaintiff filed the $350.00 filing fee in this action.
Title 28 U.S.C. 1915(e)(2)(A) provides in part that a court shall dismiss a case at any time if the court determines that the allegation of poverty is untrue. Application of this provision is within the sound discretion of the court. Greaser v. State, Dept. of Corrections, 145 F.3d 979, 985 (8th Cir. 1998) (citing Cross v. General Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983).) Further, it is recognized that courts have discretion to revoke the privilege to proceed without prepayment of costs and fees when it no longer serves its goals. Treff v. Galetka, 74 F.3d 191, 197 (10th Cir. 1996). Federal courts have long been authorized to revoke a prisoner's ability to proceed in forma pauperis upon determining that the litigant was taking unfair advantage of IFP procedures. Wilson v. Yaklich, 148 F.3d 596, 603 (6th Cir. 1998); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).
Here, Plaintiff has paid the $350.00 filing fee after having been given leave to proceed in forma pauperis. It thus appears that Plaintiff was able to pay the filing fee and voluntarily paid the fee. It may be concluded that Plaintiff now has the ability to pay the fees and costs associated with this action.
However, should Plaintiff disagree with this conclusion, then Plaintiff will have an opportunity to inform the Court of his position and his present finances by filing objections to the Court's recommendation.
Accordingly, it IS RECOMMENDED that Plaintiff's in forma pauperis status be revoked.
This report and recommendation is submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.