(PC) Garcia v. Diaz ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 JAMES GREGORY GARCIA, CASE NO. 1:20-cv-0669 JLT (PC) 12 ORDER DIRECTING CLERK OF COURT Plaintiff, TO ASSIGN A DISTRICT JUDGE; AND 13 14 v. FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 15 RALPH M. DIAZ, et al., PROCEED IN FORMA PAUPERIS (Doc. 2) 16 Defendants. FOURTEEN-DAY DEADLINE 17 18 Plaintiff moves for leave to proceed in forma pauperis in this action. (Doc. 2.) His 19 application reveals that he has $6,500 in cash. In addition, the certified prisoner trust fund account 20 statement detailing plaintiff’s inmate account shows that, since November 2019, plaintiff has 21 maintained an account balance at or above $6,400. (See Doc. 6.) 22 Proceeding “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 23 116 (9th Cir. 1965). While a party need not be completely destitute to proceed in forma pauperis, 24 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948), “the same even-handed 25 care must be employed to assure that federal funds are not squandered to underwrite, at public 26 expense, either frivolous claims or the remonstrances of a suitor who is financially able, in whole 27 or in material part, to pull his own oar.” Doe v. Educ. Enrichment Sys., No. 15cv2628-MMA 28 1 (MDD), 2015 U.S. Dist. LEXIS 173063, *2 (S.D. Cal. Dec. 30, 2015) (citing Temple v. 2 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984)). “[T]he court shall dismiss the case at any time 3 if the court determines the allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A). It appears 4 that plaintiff has had sufficient funds over the last several months to be required to pay the filing 5 fee in full to proceed in this action. Accordingly, the Court ORDERS the Clerk of Court to assign 6 a district judge to this case; and 7 The Court RECOMMENDS that plaintiff’s application to proceed in forma pauperis be 8 DENIED and plaintiff be required to pay the filing fee in full before proceeding with this action. 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 11 fourteen days after being served with these Findings and Recommendations, the parties may file 12 written objections with the Court. The document should be captioned “Objections to Magistrate 13 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 14 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 15 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 IT IS SO ORDERED. 17 Dated: May 14, 2020 /s/ Jennifer L. Thurston 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28