(PC) Palmer v. Mimms ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARLON PALMER, Case No.: 1:22-cv-01611-JLT-CDB (PC) 12 Plaintiff, ORDER DENYING APPLICATION TO 13 v. PROCEED IN FORMA PAUPERIS WITHOUT PREJUDICE 14 MARGARET MIMMS, (Doc. 3) 15 Defendant. ORDER TO RESUBMIT PROPERLY 16 COMPLETED APPLICATION TO PROCEED IN FORMA PAUPERIS OR TO 17 PAY FILING FEE WITHIN 30 DAYS 18 19 Plaintiff Marlon Palmer is proceeding pro se in this civil rights action brought pursuant to 20 42 U.S.C. § 1983. 21 On December 15, 2022, Plaintiff filed an application to proceed in forma pauperis (IFP). 22 (Doc. 3.) However, Plaintiff’s IFP application is incomplete. Thus, IFP status cannot be 23 determined at this time. Plaintiff will be given the opportunity to submit a properly completed IFP 24 application, or, alternatively, to pay the required filing fee. 25 DISCUSSION 26 Proceeding “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 27 116 (9th Cir. 1965). While a party need not be completely destitute to proceed IFP, Adkins v. E.I. 1 employed to assure that federal funds are not squandered to underwrite, at public expense, either 2 frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material 3 part, to pull his own oar.’” Evans v. Sherman, No. 1:19-cv-00760-LJO-JLT (PC), 2019 WL 4 5377040, at *2 (E.D. Cal. Aug. 21, 2019) (citation omitted). 5 Here, Plaintiff’s IFP application indicates he is not employed, does not receive any money 6 from any source, and does not have cash in any checking or savings account. (Doc. 3 at 1-2.) 7 Plaintiff also indicates he does not own any real estate, stocks, bonds, securities, other financial 8 instruments, automobiles or other valuable property, nor any other asset. (Id. at 2.) However, 9 while Plaintiff signed the IFP application authorizing the agency having custody of him to collect 10 and forward payments from his inmate trust account (id. at 2), Plaintiff has failed to provide a 11 completed “Certificate” at the bottom of page 2. 12 The ”Certificate” section is “To be completed by the institution of incarceration” and 13 signed and dated by an “authorized officer” of the institution of incarceration. Plaintiff’s 14 application is incomplete—he has not provided a completed certification concerning the sums, or 15 lack of sums, in his account at the time of the application, nor a certification concerning the 16 average monthly deposits during the past six months, if any. (See Doc. 3 at 2.) Underneath his 17 signature on page 2, and above the “Certificate” portion left blank, Plaintiff wrote “’See Financial 18 Affidavit.’” (Id.) However, no additional documentation was submitted with the IFP application; 19 there is no financial affidavit for the Court to consider. 20 Plaintiff’s now pending IFP application will be denied without prejudice. Plaintiff will be 21 afforded the opportunity to submit a properly completed IFP application, including the 22 “Certificate” portion appearing at the bottom of page 2 of the application, or to pay the filing fee. 23 CONCLUSION AND ORDER 24 For the reasons explained above, the undersigned finds Plaintiff’s IFP application, filed 25 December 15, 2022, is incomplete. As a result, IT IS HEREBY ORDERED that: 26 1. Plaintiff’s IFP application filed December 15, 2022 (Doc. 3) is DENIED without 27 prejudice; 1 of service of this Order, or, alternatively, Plaintiff must pay the filing fee of $402; and 2 3. The Clerk of the Court is directed to serve Plaintiff with a blank Application to 3 Proceed In Forma Pauperis by a Prisoner form along with this Order. 4 Plaintiff is cautioned that a failure to comply with this Order will result in a 5 | recommendation that this action be dismissed for a failure to comply with a court order. 6 | IT IS SOORDERED. 7 Dated: _ December 20, 2022 | Ww VL D R~ 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28