(PC) Dilbert v. Fisher ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CLIFFORD ALAN DILBERT, Case No.: 1:22-cv-00247-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DENY PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 14 R. FISHER, (Doc. 2) 15 Defendant. 16 17 Plaintiff Clifford Alan Dilbert has filed a motion to proceed in forma pauperis (“IFP”) 18 pursuant to 28 U.S.C. § 1915. (Doc. 2.) According to the certified account statement submitted by 19 the California Department of Corrections and Rehabilitation, Plaintiff had $1,128.62 in his inmate 20 trust account as of September 1, 2021. (Doc. 11.) As of March 1, 2022, Plaintiff had $622.35 in 21 his account. (Id.) 22 I. INTRODUCTION 23 On March 4, 2022, the undersigned issued an Order to Show Cause (“OSC”) why the 24 motion to proceed in forma pauperis should not be denied. (Doc. 12.) 25 On March 10, 2022, Plaintiff filed a “Motion to Continue In Forma Pauperis Status” (Doc. 26 13) and a “Motion to Transfer Credit/Filing Fee; PLRA from Eastern District to Northern 27 District” (Doc. 16). Both motions were denied on March 15, 2022. (Doc. 17.) 1 On March 16, 2022, Plaintiff filed a response to the OSC. (Doc. 18.) Plaintiff continues to 2 contend he paid a $350 filing fee in another matter filed with this Court, case number 1:20-cv- 3 01835-DAD-JLT, and that the filing fee paid in that now-closed action should be transferred and 4 credited in this action, or, alternatively, refunded to Plaintiff. (Id. at 1-8) As explained in the 5 Court’s March 15, 2022, Order, Plaintiff did not pay a filing fee in the other action. (Doc. 17 at 1- 6 4.) Nor is Plaintiff entitled to any credit or refund. (Id.) 7 II. DISCUSSION 8 Proceeding “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 9 116 (9th Cir. 1965). While a party need not be completely destitute to proceed in forma pauperis, 10 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948), “‘the same even-handed 11 care must be employed to assure that federal funds are not squandered to underwrite, at public 12 expense, either frivolous claims or the remonstrances of a suitor who is financially able, in whole 13 or in material part, to pull his own oar,’” Doe v. Educ. Enrichment Sys., No. 15-cv-2628-MMA- 14 MDD, 2015 U.S. Dist. LEXIS 173063, *2 (S.D. Cal. 2015) (citation omitted). In addition, courts 15 are entitled to consider plaintiffs’ “economic choices about how to spend [their] money” when 16 considering applications to proceed IFP. Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) 17 (citation omitted); see also Lumbert v. Illinois Dep’t of Corr., 827 F.2d 257, 260 (7th Cir. 1987) 18 (“If the inmate thinks that a more worthwhile use of his funds would be to buy peanuts and candy 19 . . . than to file a civil rights suit, he has demonstrated an implied evaluation of the suit that the 20 district court is entitled to honor.”) 21 Plaintiff has adequate funds to pay the filing fee for this action as demonstrated by the 22 certified account statement submitted by the California Department of Corrections and 23 Rehabilitation on March 1, 2022. (See Doc. 11.) He is not entitled to any transfer or credit of a 24 filing fee paid in another action filed with this Court even had he paid such filing fee. (See Doc. 25 17.) Additionally, Plaintiff has not demonstrated that he spent the funds on “necessities” while 26 incarcerated, i.e., while his basic necessities were covered by the State of California. See 27 Lumbert, 827 F.2d at 260. Therefore, IFP status is not warranted. 1 III. CONCLUSION AND RECOMMENDATION 2 Based on the foregoing, the Court RECOMMENDS that Plaintiff’s motion to proceed in 3 forma pauperis (Doc. 2) be DENIED. The Court DIRECTS the Clerk of the Court to assign a 4 district judge to this action. 5 These Findings and Recommendations will be submitted to the United States District 6 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 7 service of these Findings and Recommendations, Plaintiff may file written objections with the 8 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 9 Recommendations.” Failure to file objections within the specified time may result in waiver of 10 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 11 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 IT IS SO ORDERED. 13 14 Dated: March 22, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27