(PC) Davis v. Agundez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CORNELL DAVIS, Case No. 1:20-cv-00640-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY MOTION TO PROCEED IN 13 v. FORMA PAUPERIS AND DISMISS ACTION WITHOUT PREJUDICE 14 A. AGUNDEZ, et al., (Doc. 2) 15 Defendants. 14-DAY DEADLINE 16 Clerk of the Court to Assign a District Judge 17 18 On May 6, 2020, Plaintiff filed a motion to proceed in forma pauperis. (Doc. 2.) 19 According to his prison trust account statement, Plaintiff received a settlement check in the 20 amount of $3,500 on January 27, 2020. (Doc. 5.) As of April 17, 2020, Plaintiff had $1,194.68 in 21 his trust account. This is more than enough to pay the $400 filing fee in full in this action. 22 Accordingly, on May 8, 2020, the Court ordered Plaintiff to show cause why his motion to 23 proceed in forma pauperis should not be denied. (Doc. 6.) Plaintiff filed a response on May 18, 24 2020. (Doc. 9.) In his response, Plaintiff admits that he has adequate funds to pay the filing fee in 25 full. (Id. at 1-2.) Plaintiff argues that his settlement award is not “income,” and he states that he 26 should be entitled to proceed in forma pauperis because of the constitutional violations he alleges 27 in his complaint. (See id. at 2.) /// 1 As the Court explained in its order to show cause, proceeding “in forma pauperis is a 2 privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). While a party need not 3 be completely destitute to proceed IFP, Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 4 339-40 (1948), “‘the same even-handed care must be employed to assure that federal funds are 5 not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a 6 suitor who is financially able, in whole or in material part, to pull his own oar.’” Doe v. Educ. 7 Enrichment Sys., No. 15-cv-2628-MMA-MDD, 2015 U.S. Dist. LEXIS 173063, *2 (S.D. Cal. 8 2015) (quoting Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984)). Hence, “the court 9 shall dismiss the case at any time if the court determines that the [plaintiff’s] allegation of poverty 10 is untrue.” 28 U.S.C. § 1915(e)(2)(A). 11 Whether Plaintiff’s settlement is “income” is irrelevant; and, as stated above, litigants do 12 not have a right to proceed in forma pauperis. Because Plaintiff has adequate funds to “pull his 13 own oar” and pay the filing fee in full, the Court RECOMMENDS that his application to proceed 14 in forma pauperis (Doc. 2) be DENIED and this action DISMISSED without prejudice to refiling 15 upon prepayment of the filing fee. The Court DIRECTS the Clerk of the Court to assign a district 16 judge to this action. 17 These findings and recommendations will be submitted to the United States District Judge 18 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days of the 19 date of service of these findings and recommendations, Plaintiff may file written objections with 20 the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 21 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 22 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 23 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 IT IS SO ORDERED. 25 26 Dated: May 20, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 27