(PC) Demetrious A. Moore v. United States Of America ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEMETRIOUS A. MOORE, ) Case No.: 1:20-cv-00451-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 UNITED STATES OF AMERICA, et.al., ) ) FINDINGS AND RECOMMENDATION 15 Defendants. ) RECOMMENDING PLAINTIFF’S APPLICATION ) TO PROCEED IN FORMA PAUPERIS BE 16 ) DENIED ) 17 ) [ECF No. 8] ) 18 Plaintiff Demetrious A. Moore is appearing pro se in this civil rights action pursuant to Bivens 19 v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). This matter was 20 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 Plaintiff filed the instant action on January 13, 2020, in the United States District Court for the 22 Middle District of Pennsylvania. On February 18, 2020, Plaintiff filed an application to proceed in 23 forma pauperis. (ECF No. 8.) 24 On March 27, 2020, the action was transferred to this Court. 25 I. 26 LEGAL STANDARD 27 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment of fees or 28 1 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff's “is unable 2 to pay such fees or give security therefor.” A prisoner seeking to bring a civil action must, in addition 3 to filing an affidavit, “submit a certified copy of the trust fund account statement . . . for the 6-month 4 period immediately preceding the filing of the complaint . . . obtained from the appropriate official of 5 each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2). 6 The Court may grant an indigent party permission to proceed in forma pauperis upon 7 submission of an affidavit showing inability to pay the required fees. 28 U.S.C. § 1915(a). Proceeding 8 “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). A 9 party need not be completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de 10 Nemours & Co., 335 U.S. 331, 339-40 (1948). However, “[i]f an applicant has the wherewithal to pay 11 court costs, or some part thereof, without depriving himself and his dependents (if any there be) of the 12 necessities of life, then he should be required, in the First Circuit’s phrase, to ‘put his money where his 13 mouth is.’ ” Williams v. Latins, 877 F.2d 65 (9th Cir. 1989) (affirming district court denial of in 14 forma pauperis where in past 12 months, plaintiff received a sum of $5,000 settling a civil action and 15 no indication it was unavailable to plaintiff) (citing, Temple v. Ellerthorpe, 586 F.Supp. 848, 851 16 (D.R.I. 1984) (quoting In re Stump, 449 F.3d 1297, 1298 (1st Cir. 19710) (per curiam)). 17 The determination as to whether a plaintiff is indigent and therefore unable to pay the filing fee 18 falls within the court’s sound discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th 19 Cir. 1991) (reversed on other grounds). “The trial court must be careful to avoid construing the statute 20 so narrowly that a litigant is presented with a Hobson’s choice between eschewing a potentially 21 meritorious claim or foregoing life’s plain necessities.” Temple v. Ellerthorpe, 586 F.Supp. at 850 22 (citing Potnick v. Eastern State Hospital, 701 F.2d 243, 244 (2d Cir. 1983) (per curiam); Carson v. 23 Polley, 689 F.2d 562, 586 (5th Cir. 1982). “But, the same even-handed care must be employed to 24 assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or 25 the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar.” 26 Temple, 586 F.Supp. at 850 (citing Brewster v. North American Van Lines, Inc., 461 F.2d 649, 651 27 (7th Cir. 1972). 28 1 In sum, to proceed in forma pauperis, a plaintiff need not demonstrate that he is completely 2 destitute, but his poverty must prevent him from paying the filing fee and providing his dependents 3 with the necessities of life. See Adkins v. E.I. Dupont de Nemours & Co., 335 U.S. at 339-40. A “ 4 ‘showing of something more than mere hardship must be made.’ ” Nastrom v. New Century Mortg. 5 Corp., No 11-cv-1998-SAB (PS), 2011 WL 7031499, at *1 (E.D. Cal. Dec. 7, 2011) (quoting Martin 6 v. Gulf States Utilities Co., 221 F.Supp. 757, 759 (W.D. La. 1963)), report and recommendation 7 adopted by, 2012 WL 116563 (E.D. Cal. Jan. 12, 2012). 8 II. 9 DISCUSSION 10 Plaintiff has filed an application declaring that, due to his poverty, he is unable to pre-pay the 11 full amount of fees and costs for these proceedings or give security therefor, and that he believes that 12 he is entitled to the relief sought in his complaint. Plaintiff also submitted a certified copy of 13 Plaintiff’s inmate trust account statement showing the activity in Plaintiff’s account for the previous 14 six months. 15 Plaintiff’s certified inmate account statement indicates that he currently has an available sum 16 of $558.31 on account to his credit at the Federal Correctional Institution, Allenwood. Further, the 17 average monthly balance of Plaintiff’s account is $136.78, and during the past six months the average 18 monthly deposits to Plaintiff’s account is $1,588.22. (ECF Nos. 7, 8.) 19 Based on the foregoing, the information that Plaintiff has provided to the Court reflects that he 20 is financially able to pre-pay the entire filing fee to commence this action. Although the Ninth Circuit 21 Court of Appeals has held that “the filing fee … should not take the prisoner’s last dollar,” Olivares v. 22 Marshall, 59 F.3d 109, 112 (9th Cir. 1995), in these circumstances, Plaintiff has enough funds to pre- 23 pay the $400 filing fee and have money left over. Plaintiff has also consistently spent funds on 24 discretionary purchases. See id. (district court entitled to consider an inmate’s choices in spending 25 money, such as between a filing fee and comforts purchased in the prison commissary). 26 Should Plaintiff have additional information to provide the Court, or should his available 27 balance change by the time he receives this order, he may notify the Court. However, the Court has 28 the authority to consider any reasons and circumstances for any change in Plaintiff’s available assets 1 || and funds. See also Collier v. Tatum, 722 F.2d 653, 656 (11th Cir. 1983) (district court may conside! 2 || an unexplained decrease in an inmate’s trust account, or whether an inmate’s account has been 3 || depleted intentionally to avoid court costs). Therefore, Plaintiff's application to proceed in forma 4 || pauperis must be denied. If Plaintiff wishes to proceed with this action, Plaintiff must pre-pay the 5 || $400.00 filing fee in full. 6 Il. 7 ORDER AND RECOMMENDATIONS 8 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 9 || Fresno District Judge to this action. 10 Further, IT IS HEREBY RECOMMENDED that: 11 1. Plaintiff's application to proceed in forma pauperis, (ECF No. 8), be DENIED; and 12 2. Plaintiff be ordered to pay the $400.00 filing fee in full in order to proceed with this 13 action. 14 These Findings and Recommendations will be submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within fourteen (14) 16 || days after being served with these Findings and Recommendations, Plaintiff may file written 17 || objections with the court. The document should be captioned “Objections to Magistrate Judge’s 18 || Findings and Recommendations.” Plaintiff is advised that the failure to file objections within the 19 || specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 20 || appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 21 |} 1391, 1394 (9th Cir. 1991)). 22 23 ||} IT IS SO ORDERED. A (Se _ 24 ll Dated: _ March 30, 2020 OF 25 UNITED STATES MAGISTRATE JUDGE 26 27 28