Opinion
Case No. 1:19-cv-00573-JLT (PC)
05-07-2019
FLOYD FOSTER, Jr., Plaintiff, v. DIVISION OF ADULT PAROLE OPERATIONS, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS (Doc. 2) 21-DAY DEADLINE Clerk of Court to Assign a District Judge
Plaintiff filed a motion to proceed in forma pauperis along with this civil rights action pursuant to 42 U.S.C. § 1983. The Court recommend that the motion be denied because it appears that within six months prior to filing this action, Plaintiff had more than enough money to pay the filing fee but spent his money on canteen purchases instead.
I. Legal Standard
An indigent party may be granted permission to proceed in forma pauperis upon submission of an affidavit showing inability to pay the required fees. 28 USC § 1915(a). Proceeding "in forma pauperis is a privilege not a right." Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). 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). However, "[i]f 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, 1298 (1st Cir. 1971) (per curiam)). The determination as to whether a plaintiff is indigent and therefore unable to pay the filing fee falls within the court's sound discretion. California Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (reversed on other grounds).
"The trial court must be careful to avoid construing the statute so narrowly that a litigant is presented with a Hobson's choice between eschewing a potentially meritorious claim or foregoing life's plain necessities." Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984), citing Potnick v. Eastern State Hospital, 701 F.2d 243, 244 (2d Cir. 1983) (per curiam); Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). "But, 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." Temple, 586 F. Supp. at 850, citing Brewster v. North American Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).
In sum, to proceed in forma pauperis, a plaintiff need not demonstrate that he is completely destitute, but his poverty must prevent him from paying the filing fee and providing his dependents with the necessities of life. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). A "'showing of something more than mere hardship must be made.'" Nastrom v. New Century Mortg. Corp., No. 11-cv-1998, 2011 WL 7031499, at *1 (E.D. Cal. Dec. 7, 2011) (quoting Martin v. Gulf States Utilities Co., 221 F.Supp. 757, 759 (W.D. La.1963)), report and recommendation adopted by, 2012 WL 116563 (E.D. Cal. Jan.12, 2012). Since Plaintiff is currently in jail, he is not providing for any dependents and Fresno County is paying for his necessities of daily life. Williams, 877 F.2d 65.
Plaintiff's Inmate Account Statement shows that as of October 23, 2018, he had a balance of $758.03 at his disposal. (Doc. 2, p. 3.) From October 23, 2018, to April 17, 2019, Plaintiff made canteen purchases totaling $690.36, which would have been more than enough to pay the $400 filing fee for this action. The Court is entitled to consider the economic priority Plaintiff placed on the use of his money, see Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (citing Alexander v. Carson Adult High School, 9 F.3d 1448, 1449 (9th Cir. 1993), and is entitled to honor an inmate's decision of other use of available funds which the inmate considered more worthwhile than payment of a federal court's filing fee, Olivares, at 112, (quoting Lumbert v. Illinois Department of Corrections, 827 F.2d 257, 260 (7th Cir. 1987) (Noting peanut and candy "comforts" Olivares purchased in the prison commissary; "If the inmate thinks a more worthwhile use of his funds would be to buy peanuts and candy ... than to file a civil rights suit, he has demonstrated an implied evaluation of the suit that the district court is entitled to honor.").) Plaintiff clearly prioritized canteen purchases over his obligation to pay the filing fee in this action.
The determination whether a party may 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"). Plaintiff had more than enough money within a few months of the date he filed this action to pay the filing fee but chose to spend his money on canteen purchases. Thus, exceptional circumstances do not exist to grant Plaintiff's motion to proceed in forma pauperis.
RECOMMENDATION
Accordingly, the Court RECOMMENDS that Plaintiff's application to proceed in forma pauperis, filed on April 30, 2019 (Doc. 2), be DENIED and that Plaintiff be granted 21 days to pay the filing fee. The Clerk of the Court is directed to randomly assign a District Judge to 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 21 days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is informed 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 7 , 2019
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE