(PC) Franco v. Levin

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 ALEXANDER FRANCO, CASE NO. 1:19-cv-0764 JLT (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY PLAINTIFF’S MOTION TO PROCEED IN 13 v. FORMA PAUPERIS SHOULD NOT BE DENIED 14 LEVIN, et al., (Docs. 2, 8) [15] Defendants. 21-DAY DEADLINE [16] 17 The Certificate of Funds in Prisoner’s Account submitted in support of plaintiff’s 18 application to proceed in forma pauperis reveals average deposits each month totaling $160, and 19 an average monthly prisoner balance of $160. (Doc. 2.) Additionally, the Inmate Statement 20 Report submitted by the California Department of Corrections and Rehabilitation shows an 21 account balance fluctuating between $57.46 and $641.61. 22 Proceeding “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114 , 23 116 (9th Cir. 1965). While a party need not be completely destitute to proceed IFP, Adkins v. 24 E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948), “the same even-handed care must 25 be employed to assure that federal funds are not squandered to underwrite, at public expense, 26 either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in 27 material part, to pull his own oar.” Doe v. Educ. Enrichment Sys., No. 15cv2628-MMA (MDD), [1] 2015 U.S. Dist. LEXIS 173063 , *2 (S.D. Cal. Dec. 30, 2015) (citing Temple v. Ellerthorpe, 586 2 F. Supp. 848, 850 (D.R.I. 1984)). “[T]he court shall dismiss the case at any time if the court 3 determines the allegation of poverty is untrue.” 28 U.S.C. § 1915 (e)(2)(A). It appears that 4 plaintiff has had sufficient funds over the last several months to be required to pay the filing fee 5 in full to proceed in this action, but he chose to spend his money elsewhere. 6 Accordingly, the Court ORDERS that within 21 days of the date of service of this order, 7 plaintiff shall show cause why his motion to proceed in forma pauperis should not be denied and 8 this action dismissed without prejudice to refiling with prepayment of the filing fee; alternatively, 9 plaintiff may file a notice of voluntary dismissal. 10 Failure to respond to this order will result in dismissal for failure to obey a court 11 order. [12] IT IS SO ORDERED. [13] Dated: February 6, 2020 /s/ Jennifer L. Thurston [14] UNITED STATES MAGISTRATE JUDGE