(PC)Puckett v. Mack et al, No. 1:2018cv01504 - Document 9 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to Deny Plaintiff's Motion to Proceed In Forma Pauperis; Clerk to ASSIGN a District Judge signed by Magistrate Judge Jennifer L. Thurston on 12/17/2018. Referred to Judge Lawrence J. O'Neill. Objections to F&R due within Twenty-One (21) Days. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DURRELL ANTHONY PUCKETT, 12 13 14 Case No. 1:18-cv-01504-JLT (PC) Plaintiff, FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS v. JEROME J. MACK, et al., 15 (Docs. 2, 5, 8) Defendants. 21-DAY DEADLINE 16 CLERK TO ASSIGN A DISTRICT JUDGE 17 18 BACKGROUND Plaintiff filed a motion to proceed in forma pauperis along with this civil rights action 19 pursuant to 42 U.S.C. ' 1983. On November 13, 2018, an order issued for Plaintiff to show cause 20 (“OSC”) why his application to proceed in forma pauperis should not be denied. (Doc. 8.) 21 Plaintiff has not responded to the OSC. 22 DISCUSSION 23 I. 24 An indigent party may be granted permission to proceed in forma pauperis upon Legal Standard 25 submission of an affidavit showing inability to pay the required fees. 28 USC § 1915(a). The 26 determination as to whether a plaintiff is indigent and therefore unable to pay the filing fee falls 27 within the court’s sound discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th 28 1 1 Cir. 1991) (reversed on other grounds). 2 “The trial court must be careful to avoid construing the statute so narrowly that a litigant is 3 presented with a Hobson’s choice between eschewing a potentially meritorious claim or foregoing 4 life’s plain necessities.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984), citing 5 Potnick v. Eastern State Hospital, 701 F.2d 243, 244 (2d Cir. 1983) (per curiam); Carson v. 6 Polley, 689 F.2d 562, 586 (5th Cir. 1982). “But, the same even-handed care must be employed to 7 assure that federal funds are not squandered to underwrite, at public expense, either frivolous 8 claims or the remonstrances of a suitor who is financially able, in whole or in material part, to pull 9 his own oar.” Temple, 586 F. Supp. at 850, citing Brewster v. North American Van Lines, Inc., 10 11 461 F.2d 649, 651 (7th Cir. 1972). The statement report of Plaintiff’s inmate account provided by the CDCR indicates that 12 less than a month prior to filing this action, Plaintiff had over $500 that could have been used to 13 pay the filing fee. Instead, Plaintiff spent nearly $400 the same day he signed the Complaint and 14 his application to proceed in forma pauperis, which was the day before he filed this action. 15 Proceeding “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 16 116 (9th Cir. 1965). While a party need not be completely destitute to proceed IFP, Adkins v. E.I. 17 DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948), “the same even-handed care must be 18 employed to assure that federal funds are not squandered to underwrite, at public expense, either 19 frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material 20 part, to pull his own oar.” Doe v. Educ. Enrichment Sys., No. 15cv2628-MMA (MDD), 2015 U.S. 21 Dist. LEXIS 173063, *2 (S.D. Cal. Dec. 30, 2015) (citing Temple v. Ellerthorpe, 586 F. Supp. 848, 22 23 24 25 26 27 28 850 (D.R.I. 1984)). “If an applicant has the wherewithal to pay court costs, or some part thereof, without depriving himself and his dependents (if any there be) of the necessities of life, then he should be required, in the First Circuit’s phrase, to ‘put his money where his mouth is.’” Williams v. Latins, 877 F.2d 65 (9th Cir. 1989) (affirming district court denial of in forma pauperis where in past 12 months, plaintiff received a sum of $5,000 settling a civil action and no indication it was unavailable to plaintiff) (citing, Temple, 586 F.Supp. at 851(quoting In re Stump, 449 F.2d 1297, 2 1 1298 (1st Cir. 1971) (per curiam)). 2 To proceed in forma pauperis, a plaintiff need not demonstrate that he is completely 3 destitute, but his poverty must prevent him from paying the filing fee and providing his dependents 4 with the necessities of life. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 5 (1948). A “‘showing of something more than mere hardship must be made.’” Nastrom v. New 6 Century Mortg. Corp., No. 11-cv-1998, 2011 WL 7031499, at *1 (E.D. Cal. Dec. 7, 2011) 7 (quoting Martin v. Gulf States Utilities Co., 221 F.Supp. 757, 759 (W.D. La.1963)), report and 8 recommendation adopted by, 2012 WL 116563 (E.D. Cal. Jan.12, 2012). Plaintiff has not shown 9 that he has any dependents who would have been deprived of the necessities of life if he paid the 10 filing fee and, since Plaintiff is currently incarcerated, the State of California is paying for his 11 necessities of daily life. Williams, 877 F.2d 65. 12 The Court may consider the economic priority Plaintiff placed on the use of money in his 13 trust account. See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (citing Alexander v. 14 Carson Adult High School, 9 F.3d 1448, 1449 (9th Cir. 1993). A district court is entitled to honor 15 an inmate’s decision of other use of available funds which the inmate considered more worthwhile 16 than payment of a federal court’s filing fee. See Olivares, at 112, (quoting Lumbert v. Illinois 17 Department of Corrections, 827 F.2d 257, 260 (7th Cir. 1987) (Noting peanut and candy 18 “comforts” the plaintiff purchased in the prison commissary; “If the inmate thinks a more 19 worthwhile use of his funds would be to buy peanuts and candy ... than to file a civil rights suit, he 20 has demonstrated an implied evaluation of the suit that the district court is entitled to honor.”).) 21 Plaintiff clearly prioritized various purchases over his obligation to pay the filing fee in this action. 22 23 24 25 26 27 28 The determination whether a party can proceed in forma pauperis is a “matter within the discretion of the trial court and in civil actions for damages should be allowed only in exceptional circumstances.” Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“court permission to proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis status does not violate the applicant’s right to due process”). The day Plaintiff signed the Complaint and the application to proceed in forma pauperis, which was the day before he filed this action, Plaintiff spent nearly 3 1 $400 elsewhere. Thus, Plaintiff’s application to proceed in forma pauperis should be denied and 2 this action should be dismissed without prejudice to refiling on prepayment of the filing fee. RECOMMENDATION 3 4 Accordingly, the Court RECOMMENDS that Plaintiff’s application to proceed in forma 5 pauperis, filed on July 11, 2018 (Doc. 2), be DENIED and that the action be dismissed without 6 prejudice to refiling on prepayment of the filing fee. The Clerk of the Court is directed to 7 randomly assign a district judge to this action. 8 9 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)(l). Within 21 days 10 after being served with these Findings and Recommendations, Plaintiff may file written objections 11 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 12 and Recommendations.” Plaintiff is informed that failure to file objections within the specified 13 time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 14 Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 IT IS SO ORDERED. 16 17 Dated: December 17, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 4