Gradford v. Lignoski, et al.

Filing 9

ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS 2 , 6 and DISMISSING ACTION WITHOUT PREJUDICE signed by Magistrate Judge Jennifer L. Thurston on 8/1/2017. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM J. GRADFORD, 12 13 14 15 Plaintiff, v. LIGNOSKI, et al., Case No. 1:17-cv-00792-JLT (PC) ORDER DENYING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS and DISMISSING ACTION WITHOUT PREJUDICE (Docs. 2, 6) Defendants. 16 17 Plaintiff filed a motion to proceed in forma pauperis in this action. Plaintiff’s motion 18 indicates that he receives “SSI, $937.00 monthly, last received Dec. 1, 2016.” (Doc. 2, p. 1.) 19 Further, the certificate from the authorized officer at the institution of his incarceration indicates 20 that during the six months prior to Plaintiff filing this action, the average monthly deposits to his 21 trust account was $302.45. (Id., p. 2.) Thus, on June 13, 2017, the Court ordered Plaintiff to 22 show cause why his motion to proceed in forma pauperis should not be denied since it did not 23 appear that Plaintiff met the poverty requirements. (Doc. 4.) Plaintiff responded to that order by 24 filing another IFP application indicating that the average monthly deposits to his account during 25 the prior six months was $279.54. (Doc. 6.) A $20 difference in the average monthly deposits is 26 insufficient to establish Plaintiff’s poverty. 27 28 Proceeding “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). Though a party need not be completely destitute to proceed IFP, Adkins v. 1 1 E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948), “the same even-handed care must 2 be employed to assure that federal funds are not squandered to underwrite, at public expense, 3 either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in 4 material part, to pull his own oar.” Doe v. Educ. Enrichment Sys., No. 15cv2628-MMA (MDD), 5 2015 U.S. Dist. LEXIS 173063, *2 (S.D. Cal. Dec. 30, 2015) (citing Temple v. Ellerthorpe, 586 6 F. Supp. 848, 850 (D.R.I. 1984)). “[T]he court shall dismiss the case at any time if the court 7 determines the allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A). It appears that 8 Plaintiff has had sufficient funds over the last several months to be required to pay the filing fee 9 in full to proceed in this action. 10 Accordingly, Plaintiff’s motions to proceed in forma pauperis are DENIED and this 11 action is DISMISSED without prejudice to refiling with prepayment of the filing fee. The Clerk 12 of the Court is directed to close this action. 13 14 15 IT IS SO ORDERED. Dated: August 1, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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