(PC) Jacques v. Hearn

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 MICHAEL E. JACQUES, No. 2:23-cv-02714 SCR P 12 Plaintiff, 13 v. ORDER 14 C. HEARN, 15 Defendant. [17] 18 Plaintiff, proceeding without counsel while confined at Salinas Valley State Prison, filed 19 this civil rights action concerning events that took place at Mule Creek State Prison. (ECF No. 1.) 20 Plaintiff also filed an in forma pauperis affidavit (“IFP”) in which he stated he was unable to pay 21 the court costs and had not received money from other sources over the last twelve months. (ECF 22 No. 2 at 1.) 23 On June 13, 2024, the magistrate judge previously assigned to this case denied plaintiff’s 24 application to proceed IFP, finding plaintiff was able to pay the court costs and was not entitled to 25 IFP status on November 2, 2023, the day on which he signed the IFP affidavit and constructively 26 filed the complaint. (ECF No. 6 at 2.) To the contrary, plaintiff’s trust account statement indicated 27 the account contained $2,297.63 on that date. (Id. at 1.) It was specifically noted that plaintiff had 28 received “TRACS TRANSFER” funds in the amount of $2,012.76 on October 13, 2023, which 1 were not disclosed on the IFP affidavit. (Id.) Plaintiff was ordered to either submit the appropriate 2 court costs to the Clerk of the Court, or “clarify his financial condition and attempt to demonstrate 3 financial hardship in a renewed IFP application” along with an explanation why the incoming 4 funds were not disclosed on the IFP affidavit (Id. at 3.) 5 Plaintiff has responded to the court’s order explaining why the incoming “TRACS 6 TRANSFER” funds were not disclosed on the IFP affidavit signed on November 2, 2023. (ECF 7 No. 7.) Plaintiff states he was unaware of the funds. (Id. at 1.) Plaintiff additionally states he had 8 received and relied on a statement report dated September 12, 2023, which did not reflect the 9 credits at issue. (Id.) 10 In order to commence an action, a plaintiff must either pay both the $350.00 filing fee and 11 the $55.00 administrative fee for a civil action or be granted leave to proceed IFP.1 See 28 U.S.C. 12 §§ 1914(a), 1915(a). The court may authorize the commencement of an action “without 13 prepayment of fees or security therefor” by an individual who submits an affidavit evidencing an 14 inability to pay such fees or give security therefor. 28 U.S.C. § 1915 (a). 15 “An affidavit in support of an IFP application is sufficient where it alleges that the affiant 16 cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 17 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 18 331, 339 (1948)). While § 1915(a) does not require a litigant to demonstrate “absolute 19 destitution,” Adkins, 335 U.S. at 339, the applicant must nonetheless show inability to pay the 20 fees. 28 U.S.C. § 1915 (a). A district court has broad discretion to grant or deny a motion to 21 proceed IFP. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). “[P]ermission to proceed in 22 forma pauperis is itself a matter of privilege and not right[.]” Franklin v. Murphy, 745 F.2d 1221 , 23 1231 (9th Cir. 1984), abrogated on other grounds by Neitzke v. Williams, 490 U.S. 319 (1989). 24 The undersigned will accept plaintiff’s explanation that plaintiff was not aware of the trust 25 account deposits at issue when he signed the IFP affidavit and constructively filed the complaint. [26] 27 1 If leave to file in forma pauperis is granted, plaintiff will still be required to pay the $350.00 filing fee but will be allowed to pay it in installments. Litigants proceeding in forma pauperis are 28 not required to pay the $55.00 administrative fee. 1 | Accepting plaintiffs explanation, the undersigned will not recommend that this case be dismissed 2 | for an untrue allegation of poverty. See Escobedo v. Applebees, 787 F.3d 1226 , 1235 n.8 (9th Cir. 3 || 2015) (“To dismiss [a] complaint pursuant to § 1915(e)(2), a showing of bad faith is required, not 4 || merely mnaccuracy.”). 5 However, plaintiff has made an inadequate showing of indigency. Plaintiff must pay the 6 || court costs in order to proceed with this case. Plaintiff is cautioned that failure to pay the court 7 || costs will result in a recommendation that the application to proceed in forma pauperis be denied 8 | and this action be dismissed without prejudice. 9 For the reasons set forth above, IT IS HEREBY ORDERED that, within 30 days from the 10 | date of this order, plaintiff shall submit the court costs in the amount of $405 in order to proceed 11 | with this action. 12 | DATED: October 15, 2024 [1] 14 SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE