Jeff Walker v. Robles et al

Filing 9

FINDINGS and RECOMMENDATIONS to Deny Plaintiff's Motion to Proceed in Forma Pauperis Because of Untrue Poverty Allegation 2 , 7 , 8 , signed by Magistrate Judge Jennifer L. Thurston on 6/12/17: 21-Day Deadline. (Hellings, J)

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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,

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v.

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FINDINGS AND RECOMMENDATIONS TO
DENY PLAINTIFF’S MOTION TO PROCEED
IN FORMA PAUPERIS BECAUSE OF
UNTRUE POVERTY ALLEGATION

ROBLES, et al.,
(Doc. 2, 7, 8)

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Defendants.
21-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. On May 8, 2017, the Court ordered Plaintiff to show cause why

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this action should not be dismissed based on his poverty allegations that appeared to be untrue.

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(Doc. 7.) The Court noted that Plaintiff has another case pending in this Court, Walker v.

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Wechsler, et al., 1:16-cv-01417-JLT (the Wechsler case), in which the defendant filed a motion to

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dismiss asserting that Plaintiff made an untrue allegation of poverty. See Wechsler case, at Doc.

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26.

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I.

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Legal Standard
An indigent party may be granted permission to proceed in forma pauperis upon

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submission of an affidavit showing inability to pay the required fees. 28 USC § 1915(a). The

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determination as to whether a plaintiff is indigent and therefore unable to pay the filing fee falls

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within the court’s sound discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th

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Cir. 1991) (reversed on other grounds).
“The trial court must be careful to avoid construing the statute so narrowly that a litigant

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is presented with a Hobson’s choice between eschewing a potentially meritorious claim or

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foregoing life’s plain necessities.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984),

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citing Potnick v. Eastern State Hospital, 701 F.2d 243, 244 (2d Cir. 1983) (per curiam); Carson v.

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Polley, 689 F.2d 562, 586 (5th Cir. 1982). “But, the same even-handed care must be employed to

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

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

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pull his own oar.” Temple, 586 F. Supp. at 850, citing Brewster v. North American Van Lines,

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Inc., 461 F.2d 649, 651 (7th Cir. 1972).
In the motion to dismiss in the Weschler case, the Defendant submitted 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 (“the Jones case”). Id.,

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Doc. 26, Doc. 27-1.1 As noted in the OSC in this case, in response to the question on his in forma

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pauperis applications in this case and the Weschler case whether he had received any money from

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“Any other sources” in the twelve months prior to filing the actions, Plaintiff marked both the line

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for “Yes” and “No.” Compare 1:16-cv-1886, Doc. 2, p. 1 with 1:16-cv-1417, Doc. 2, pp. 1-2.
In response to the OSC, Plaintiff acknowledges that he received a $10,000 settlement in

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the Jones case, but contends that the money went to pay “past obligations.” (Doc. 8, p. 1.) To

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this end, Plaintiff lists “8000.00 or so on re-opening business Under Aces roses on line store set

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up;” that he gave $700.00 to his mother and father; “phone bill 25.00 every two weeks or so;” that
he borrowed $300 from friends which allowed him “to go to the store to pay [sic] cosmetics;” and
that he had to pay a secretary and “past bills from collectors.” (Id.) He does not report these latter

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The Court takes judicial of the Stipulation and Order re Dismissal with Prejudice filed in the Jones case and
signed by the Honorable Charles R. Breyer on October 21, 2016 (Doc. 27-1 in the Wechsler case). The Court may
take judicial notice 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). Moreover,
Plaintiff disputes neither their existence, nor the accuracy of their contents.
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amounts. (Id.) Plaintiff states that he did not lie or make untrue statements. (Id.)
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). A party need not be completely destitute to proceed in forma pauperis.

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Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). However, “[i]f an

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applicant has the wherewithal to pay court costs, or some part thereof, without depriving himself

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and his dependents (if any there be) of the necessities of life, then he should be required, in the

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First Circuit’s phrase, to ‘put his money where his mouth is.’” Williams v. Latins, 877 F.2d 65

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(9th Cir. 1989) (affirming district court denial of in forma pauperis where in past 12 months,

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plaintiff received a sum of $5,000 settling a civil action and no indication it was unavailable to

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plaintiff) (citing, Temple, 586 F.Supp. at 851(quoting In re Stump, 449 F.2d 1297, 1298 (1st Cir.

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1971) (per curiam)).

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In sum, to proceed in forma pauperis, a plaintiff need not demonstrate that he is

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completely destitute, but his poverty must prevent him from paying the filing fee and providing

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his dependents with the necessities of life. See Adkins v. E.I. DuPont de Nemours & Co., 335

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U.S. 331, 339-40 (1948). A “‘showing of something more than mere hardship must be made.’”

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Nastrom v. New Century Mortg. Corp., No. 11-cv-1998, 2011 WL 7031499, at *1 (E.D. Cal. Dec.

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7, 2011) (quoting Martin v. Gulf States Utilities Co., 221 F.Supp. 757, 759 (W.D. La.1963)),

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report and recommendation adopted by, 2012 WL 116563 (E.D. Cal. Jan.12, 2012). Plaintiff has

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not shown that he has any dependents who would have been deprived of the necessities of life if

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he paid the filing fee and, since Plaintiff is currently civilly detained, the State of California is

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paying for his necessities of daily life. Williams, 877 F.2d 65.

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Plaintiff accounts for spending approximately $9,025 of his settlement proceeds, but he
fails to account for $975.00 -- which would have been more than sufficient to pay the $400 filing
fee for this action. Further, even if Plaintiff had spent every penny of settlement proceeds from
the Jones case, the Court is entitled to consider the economic priority Plaintiff placed on the use
of his settlement proceeds. See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (citing
Alexander v. Carson Adult High School, 9 F.3d 1448, 1449 (9th Cir. 1993). A district court is
entitled to honor an inmate’s decision of other use of available funds which the inmate considered

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more worthwhile than payment of a federal court’s filing fee. See Olivares, at 112, (quoting

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Lumbert v. Illinois Department of Corrections, 827 F.2d 257, 260 (7th Cir. 1987) (Noting peanut

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and candy “comforts” Olivares purchased in the prison commissary; “If the inmate thinks a more

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worthwhile use of his funds would be to buy peanuts and candy ... than to file a civil rights suit,

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he has demonstrated an implied evaluation of the suit that the district court is entitled to honor.”).)

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Here, Plaintiff clearly prioritized online purchases, a monetary gift to his parents, and other past

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debts over his obligation to pay the filing fee in this action. The Court advised Plaintiff that

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choosing to spend his money or give it away rather than use it to pay his filing fee, while

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understandable, would not justify his application to proceed in forma pauperis. (Doc. 7, p. 2, n.

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2.) Despite this, his report merely demonstrates that he preferred to spend his money other than

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on paying his filing fee.

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The determination whether a party can proceed in forma pauperis is a “matter within the

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discretion of the trial court and in civil actions for damages should be allowed only in exceptional

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circumstances.” Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963); see also Franklin v.

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Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“court permission to proceed in forma pauperis is

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itself a matter of privilege and not right; denial of in forma pauperis status does not violate the

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applicant’s right to due process”). It is immaterial whether Plaintiff chose to spend the settlement

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proceeds from the Jones case elsewhere, or retained some that he could have used to pay the

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filing fee for this action but chose not to do so. Plaintiff had $10,000 at his disposal within three

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months of the date he filed this action. He thus did not qualify as impoverished when he filed his

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application to proceed in forma pauperis.

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RECOMMENDATION
Accordingly, the Court RECOMMENDS that Plaintiff’s application to proceed in forma
pauperis, filed on December 19, 2016 (Doc. 2), be DENIED and that Plaintiff be required to pay
the $400.00 filing fee to proceed in this action.
These Findings and Recommendations will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 21
days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is informed that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

June 12, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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