(PC) Franco v. Levin ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALEXANDER FRANCO, CASE NO. 1:19-cv-0764 JLT (PC) 12 ORDER VACATING ORDER TO SHOW Plaintiff, CAUSE; 13 14 v. ORDER DIRECTING CLERK OF COURT TO ASSIGN A DISTRICT JUDGE; AND 15 LEVIN, et al., FINDINGS AND RECOMMENDATIONS 16 TO DENY PLAINTIFF’S MOTION TO Defendants. PROCEED IN FORMA PAUPERIS 17 (Docs. 2, 11) 18 FOURTEEN-DAY DEADLINE 19 Previously, the Court direct plaintiff to show cause why his application to proceed in 20 forma pauperis should not be denied considering that the Certificate of Funds in Prisoner’s 21 Account submitted in support of plaintiff’s application to proceed in forma pauperis revealed 22 average deposits each month totaling $160, and an average monthly prisoner balance of $160. 23 (Docs. 2, 11.) Additionally, the Inmate Statement Report submitted by the California Department 24 of Corrections and Rehabilitation shows an account balance fluctuating between $57.46 and 25 $641.61. (Doc. 8.) Plaintiff has not responded to the order to show cause, and the time for doing 26 so has now passed. 27 As the Court informed plaintiff, proceeding “in forma pauperis is a privilege not a right.” 28 1 Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). Though a party need not be completely 2 destitute to proceed in forma pauperis, Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 3 339-40 (1948), “the same even-handed care must be employed to assure that federal funds are not 4 squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a 5 suitor who is financially able, in whole or in material part, to pull his own oar.” Alvarez v. 6 Berryhill, 2018 WL 6265021, at *1 (S.D. Cal. Oct. 1, 2018) (citing Temple v. Ellerthorpe, 586 F. 7 Supp. 848, 850 (D.R.I. 1984)). “[T]he court shall dismiss the case at any time if the court 8 determines the allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A). It appears that 9 plaintiff has had sufficient funds over the last several months to be required to pay the filing fee 10 in full to proceed in this action, but he chose to spend his money elsewhere. Accordingly, the 11 Court ORDERS as follows: 12 1. The order to show cause is VACATED; 13 2. The Clerk of Court is directed to assign a district judge to this case; and 14 The Court RECOMMENDS that plaintiff’s application to proceed in forma pauperis be 15 DENIED and plaintiff be required to pay the filing fee in full before proceeding with this action. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 18 fourteen days after being served with these Findings and Recommendations, the parties may file 19 written objections with the Court. The document should be captioned “Objections to Magistrate 20 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 21 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 22 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 IT IS SO ORDERED. 24 25 Dated: April 14, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 26 27 28