(PC) Tri v. Gutierrez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LY TRI, Case No.: 1:22-cv-00836 SKO (PC) 12 Plaintiff, ORDER DENYING IN FORMA PAUPERIS 13 v. APPLICATION WITHOUT PREJUDICE 14 C. GUTIERREZ, et al., (Doc. 2) 15 Defendants. ORDER TO RESUBMIT COMPLETED IN FORMA PAUPERIS APPLICATION OR TO 16 PAY FILING FEE WITHIN 30 DAYS 17 18 Plaintiff Ly Tri, a state prisoner, is proceeding pro se in this civil rights action brought 19 pursuant to 42 U.S.C. § 1983. 20 I. INTRODUCTION 21 On July 8, 2022, Plaintiff filed an Application to Proceed In Forma Pauperis by a 22 Prisoner. (Doc. 2.) Plaintiff declared he was unable to pay the filing fee, was unemployed, did not 23 receive any money from a business, profession or self-employment, rent payments, interest or 24 dividends, pensions, annuities or life insurance payments, disability or workers’ compensation 25 payments, gifts or inheritance, nor from “[a]ny other sources.” (Id. at 1-2.) Plaintiff did not 26 provide an answer to the question, “Do you have cash (includes balance of checking or savings 27 account(s)?” (Id. at 2.) He denied owing any real estate, stocks, bonds, security or other financials 1 assets.” (Id.) 2 On July 12, 2022, a Prisoner Trust Fund Account Statement was filed with the Court. 3 (Doc. 6.) 4 For the reasons set forth below, the undersigned denies Plaintiff’s application to proceed 5 in forma pauperis (IFP), without prejudice, and orders that Plaintiff resubmit a properly 6 completed IFP application or pay the $402 filing fee within 30 days. 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 IFP, Adkins v. E.I. 10 DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948), “‘the same even-handed care must be 11 employed to assure that federal funds are not squandered to underwrite, at public expense, either 12 frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material 13 part, to pull his own oar,’” Doe v. Educ. Enrichment Sys., No. 15-cv-2628-MMA-MDD, 2015 14 U.S. Dist. LEXIS 173063, *2 (S.D. Cal. 2015) (citation omitted). In addition, courts are entitled 15 to consider plaintiffs’ “economic choices about how to spend [their] money” when considering 16 applications to proceed IFP. Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (citation 17 omitted); see also Lumbert v. Illinois Dep’t of Corr., 827 F.2d 257, 260 (7th Cir. 1987) (“If the 18 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 Here, Plaintiff has did not answer Question 4 of the IFP application: Do you have cash 22 (includes balance of checking or savings account)? (See Doc. 2 at 2.) Plaintiff’s IFP application 23 is therefore incomplete. 24 Plaintiff also answered “No” to Question 3(f) regarding whether he has received any 25 money in the past twelve months from “[a]ny other sources.” However, the certified account 26 statement submitted on July 12, 2022, reflects two entries that should be explained: (1) “JPAY” in 27 the sum of $75 credited on March 25, 2022; and (2) “JPAY” in the sum of $200 credited on May 1 Finally, the certified account statement reveals that on July 7, 2022, deposits of $1,200, 2 $600, and $36.46 were credited to Plaintiff’s inmate trust account, reflecting an account balance1 3 of $2,263.81 on that date. (Doc. 6 at 1.) These deposits are identified as “INMATE SPECIAL 4 DEPOSIT – DO/CS ONLY” and “MISC. INCOME (EXEMPT).” (Id.) Those same sums are also 5 reflected on the “Encumbrance List” as “Negotiable Hold Instruments” as of July 7, 2022. (Id.) 6 Although the deposits were made, encumbered, or held after Plaintiff’s signed the IFP application 7 submitted with his complaint, Plaintiff needs to explain these entries. Because this may be income 8 from another source, it should be addressed in a completed IFP application—should Plaintiff elect 9 to submit one.2 10 III. CONCLUSION AND ORDER 11 For the reasons explained above, the undersigned finds Plaintiff’s IFP application, filed 12 July 8, 2022, is incomplete. As a result, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s IFP application filed July 8, 2022 (Doc. 2) is DENIED without prejudice; 14 2. Plaintiff must submit a properly completed IFP application within 30 days of the date 15 of service of this Order, or, alternatively, Plaintiff must pay the filing fee of $402; and 16 3. The Clerk of the Court is directed to serve Plaintiff with a blank Application to 17 Proceed In Forma Pauperis by a Prisoner form along with this Order. 18 Plaintiff is cautioned that a failure to comply with this Order will result in a 19 recommendation that this action be dismissed for a failure to comply with a court order. 20 IT IS SO ORDERED. 21 22 Dated: July 14, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 23 24 25 26 1 The “Account Balance” along the right side of the page is not to be confused with the “Current Available Balance” provided at the top of the page. 27 2 The application directs an applicant to explain this type of income immediately after Question 3(f): “If the answer to any of the above is “yes,” describe by that item each source of money, state the amount received, as well as what you expect you will continue to receive (attach an additional sheet if necessary).”