(PC) Stevens v. Martinez ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LYRALISA LAVENA STEVENS, Case No. 1:21-cv-01144-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS 14 C. MARTINEZ, (Doc. 2) 15 Defendant. 14-DAY DEADLINE 16 Clerk of the Court to Assign District Judge 17 18 Plaintiff Lyralisa Lavena Stevens is a state prisoner proceeding pro se in this action. On 19 July 22, 2021, Plaintiff filed a motion to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 20 1915. (Doc. 2.) According to the inmate trust account statement submitted by the California 21 Department of Corrections and Rehabilitation (CDCR), Plaintiff had $1,418.92 on the date she 22 submitted her IFP application. (Doc. 4). This is more than enough to pay the $402 filing fee for 23 this action. 24 On August 2, 2021, the Court issued an order to show cause why the motion to proceed 25 IFP should not be denied. (Doc. 7.) Plaintiff filed a response on August 12, 2021. (Doc. 10.) 26 Plaintiff states that she received an “EIP stimulus check” that did not become available in her 27 trust account until “7-9-21,” and “[t]herefore it was impossible for Plaintiff to pay the $402.00 28 filing fee . . . on Aug. 02, 2021.” (Id. at 1.) 1 It appears that Plaintiff believes “7-9-21” stands for August 9, 2021, (see id.), when it 2 actually stands for July 9, 2021. According to the inmate trust account statement submitted by 3 CDCR, (Doc. 4), as well as the statement submitted by Plaintiff herself with her response, (Doc. 4 10 at 3-4), Plaintiff’s account was credited $1,400 on July 9, 2021. On July 22, 2021—the date 5 that Plaintiff filed her IFP application—Plaintiff had $1,418.42 available in her trust account. 6 (Doc. 4 at 2.) 7 As explained in the order to show cause, proceeding “in forma pauperis is a privilege not a 8 right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). While a party need not be completely 9 destitute to proceed IFP, Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948), 10 “‘the same even-handed care must be employed to assure that federal funds are not squandered to 11 underwrite . . . either frivolous claims or the remonstrances of a suitor who is financially able, in 12 whole or in material part, to pull his own oar,’” Doe v. Educ. Enrichment Sys., No. 15-cv-2628- 13 MMA-MDD, 2015 U.S. Dist. LEXIS 173063, *2 (S.D. Cal. 2015) (citation omitted). 14 Plaintiff had adequate funds to pay the filing fee for this action when she filed her motion 15 to proceed in forma pauperis (Doc. 2). Accordingly, the Court RECOMMENDS that the motion 16 be DENIED. The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 17 These Findings and Recommendations will be submitted to the United States District 18 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 19 service of these Findings and Recommendations, Plaintiff may file written objections with the 20 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 her 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: August 13, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 27 28