(PC) Arteaga v. Neve ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE ARTEAGA, Case No.: 1:19-cv-01001-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS 14 D. NEVE, et al., (Docs. 11, 15) 15 Defendants. 21-DAY DEADLINE 16 Clerk of the Court to assign a District Judge 17 18 On November 18, 2019, Plaintiff Jose Arteaga filed a motion to proceed in forma 19 pauperis (IFP). (Doc. 11.) The Inmate Statement Report included with Plaintiff’s motion 20 indicates that, as of September 19, 2019, Plaintiff had $1,186.72 in his inmate trust account. (Id. 21 at 9.) During the preceding six months, Plaintiff had an average monthly balance of 22 approximately $1,486. (See id.) Thus, it appears that Plaintiff has adequate funds to pay the filing 23 fee of $400 in full to proceed in this action. 24 Accordingly, on November 25, 2019, the Court issued an order to show cause why 25 Plaintiff’s IFP motion should not be denied. (Doc. 13.) Plaintiff responded on December 20, 26 2019.1 (Doc. 15.) In his response, Plaintiff does not contest that he has adequate funds to pay the 27 1 1 filing fee in this action, and he discusses the efforts he has made to attempt to pay the fee from his 2 inmate trust account. (See id. at 2-4.) Plaintiff states that he was under the assumption that all 3 prisoners must file IFP applications as a matter of course, and that he did not intend to mislead the 4 Court about his ability to pay the filing fee. (See id.) 5 As the Court previously explained, (see Doc. 13 at 1), proceeding “in forma pauperis is a 6 privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). While a party need not 7 be completely destitute to proceed IFP, Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 8 339-40 (1948), “‘the same even-handed care must be employed to assure that federal funds are 9 not squandered to underwrite, at public expense, … the remonstrances of a suitor who is 10 financially able, in whole or in material part, to pull his own oar.’” Doe v. Educ. Enrichment Sys., 11 No. 15cv2628-MMA (MDD), 2015 U.S. Dist. LEXIS 173063, *2 (S.D. Cal. 2015) (quoting 12 Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984)). 13 Since Plaintiff is able to pay the filing fee in full in this action, the Court HEREBY 14 RECOMMENDS that: 15 1. Plaintiff’s motion to proceed in forma pauperis, (Doc. 11) be DENIED; and, 16 2. Plaintiff be required to pay the filing fee of $400.00 within 30 days of the assigned 17 District Judge adopting these findings and recommendations. 18 The Court DIRECTS the Clerk of the Court to randomly assign a District Judge to this action. 19 These findings and recommendations will be submitted to the United States District Judge 20 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days of the 21 date of service of these findings and recommendations, Plaintiff may file written objections with 22 the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 23 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 24 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 25 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 26 IT IS SO ORDERED. 27 Sheila K. Oberto January 2, 2020 /s/ . 1 UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27