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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM J. GRADFORD,

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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.

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Plaintiff filed a motion to proceed in forma pauperis in this action. Plaintiff’s motion

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indicates that he receives “SSI, $937.00 monthly, last received Dec. 1, 2016.” (Doc. 2, p. 1.)

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Further, the certificate from the authorized officer at the institution of his incarceration indicates

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that during the six months prior to Plaintiff filing this action, the average monthly deposits to his

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trust account was $302.45. (Id., p. 2.) Thus, on June 13, 2017, the Court ordered Plaintiff to

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show cause why his motion to proceed in forma pauperis should not be denied since it did not

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appear that Plaintiff met the poverty requirements. (Doc. 4.) Plaintiff responded to that order by

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filing another IFP application indicating that the average monthly deposits to his account during

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the prior six months was $279.54. (Doc. 6.) A $20 difference in the average monthly deposits is

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insufficient to establish Plaintiff’s poverty.

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

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

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

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

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

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F. 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). It appears that

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Plaintiff has had sufficient funds over the last several months to be required to pay the filing fee

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in full to proceed in this action.

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Accordingly, Plaintiff’s motions to proceed in forma pauperis are DENIED and this

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action is DISMISSED without prejudice to refiling with prepayment of the filing fee. The Clerk

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of the Court is directed to close this action.

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IT IS SO ORDERED.
Dated:

August 1, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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