Jeff Walker v. Robles et al

Filing 7

ORDER to SHOW CAUSE Why the Case Should Not be Dismissed Because of Plaintiff's Untrue Allegation of Poverty in Filing for In Forma Pauperis Status signed by Magistrate Judge Jennifer L. Thurston on 5/8/2017. Show Cause Response due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEFF WALKER,

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Case No. 1:16-cv-01886-AWI-JLT (PC)
Plaintiff,

Defendants.

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(Doc. 2)

v.

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ORDER TO SHOW CAUSE WHY THE CASE
SHOULD NOT BE DISMISSED BECAUSE OF
PLAINTIFF’S UNTRUE ALLEGATION OF
POVERTY IN FILING FOR IN FORMA
PAUPERIS STATUS

ROBLES, et al.,

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30-DAY DEADLINE

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Plaintiff filed a motion to proceed in forma pauperis along with this civil rights action

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pursuant to 42 U.S.C. ' 1983. Plaintiff currently has another case pending in this Court. See

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Walker v. Wechsler, et al., 1:16-cv-01417-JLT. The Defendants in Plaintiff’s other case have

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filed a motion to dismiss asserting that Plaintiff made an untrue allegation of poverty in his IFP

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application to the Court. See Id, at Doc. 26. In that motion, Defendants submit evidence that on

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September 19, 2016, exactly three months before Plaintiff filed this action and his accompanying

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motion to proceed in forma pauperis, Plaintiff received $10,000 in settlement of a legal action in

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the Northern District of California, Walker v. Jones, et al., 08-cv-0757. Id., Doc. 26, Doc. 27-1.1

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The Court notes that here, as in Plaintiff’s other case, he marked both the “Yes” and the “No”

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Judicial is taken of the Stipulation and Order re Dismissal with Prejudice which was filed in that action and signed
by the Honorable Charles R. Breyer on October 21, 2016 (Doc. 27-1 in this action) as notice may be taken of
undisputed matters of public record, including documents on file in federal or state courts. Fed.Rules Evid.Rule 201,
28 U.S.C.A.; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (2012).

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boxes when responding to the question whether he had received any money from “Any other

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sources” in the twelve months prior to filing this action. Compare 1:16-cv-1886, Doc. 2, p. 1

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with 1:16-cv-1417, Doc. 2, pp. 1-2.
Proceeding “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114,

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116 (9th Cir. 1965). While a party need not be completely destitute to proceed IFP, Adkins v. E.I.

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DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948), “the same even-handed care must be

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employed to assure that federal funds are not squandered to underwrite, at public expense, either

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frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material

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part, to pull his own oar.” Doe v. Educ. Enrichment Sys., No. 15cv2628-MMA (MDD), 2015

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U.S. Dist. LEXIS 173063, *2 (S.D. Cal. Dec. 30, 2015) (citing Temple v. Ellerthorpe, 586 F.

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Supp. 848, 850 (D.R.I. 1984)). “[T]he court shall dismiss the case at any time if the court

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determines the allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A).
Accordingly, the Court ORDERS that within 30 days of the date of service of this order,

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Plaintiff SHALL show cause why in writing why his in forma pauperis status should not be

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denied and he be required to pay the filing fee2.

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IT IS SO ORDERED.
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Dated:

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May 8, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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Plaintiff is advised that if he chose to spend his money or give it away rather than use it to pay his filing fee, the
Court understands this inclination but this would not justify him proceeding in forma pauperis.

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