Quijeda v. Lopez, et al.

Filing 5

ORDER to SHOW CAUSE why case should not be dismissed because of Plaintiff's untrue allegation of poverty in filing for in forma pauperis status 2 signed by Magistrate Judge Sheila K. Oberto on 8/30/2017. Show Cause Response due within 21-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JASON QUIJEDA,
Plaintiff,

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v.
LOPEZ, et al.,

ORDER TO SHOW CAUSE WHY CASE SHOULD
NOT BE DISMISSED BECAUSE OF PLAINTIFF’S
UNTRUE ALLEGATION OF POVERTY IN
FILING FOR IN FORMA PAUPERIS STATUS
(Doc. 2)

Defendants.

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Case No. 1:17-cv-01162-SKO (PC)

21-DAY RESPONSE DEADLINE

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Plaintiff, Jason Quijeda, is a state prisoner proceeding pro se in this action pursuant to 42

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U.S.C. § 1983. On August 29, 2017, Plaintiff filed this civil rights action along with a motion to

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proceed in forma pauperis. Plaintiff included a report of activity in his inmate trust account for

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the six months prior to initiating this action with his in forma pauperis application. (Doc. 2, p. 4.)

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That report indicates that, over the last six months, Plaintiff received an average of $248.32 per

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month, and that the month before filing this suit, Plaintiff received income totaling $503.68. (Id.)

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That report also shows that, during this same timeframe, Plaintiff spent an average of $274.14

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each month. (Id.)

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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)). A party need not be completely destitute to proceed in forma

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pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). However,

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“[i]f an applicant has the wherewithal to pay court costs, or some part thereof, without depriving

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

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

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65 (9th Cir. 1989). The court is required to “dismiss the case at any time if the court determines

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the allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A).

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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 is

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currently incarcerated. Thus, the State of California is paying for Plaintiff’s daily necessities, and

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Plaintiff is likely not responsible for providing any dependents with the necessities of life.

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Williams, 877 F.2d 65.

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A district court is entitled to honor an inmate’s decision to think that it is more worthwhile
to use his funds for purchases, rather than for the payment of a federal court’s filing fee. See
Olivares, at 112, (quoting Lumbert v. Illinois Department of Corrections, 827 F.2d 257, 260 (7th
Cir. 1987) (Noting peanut and candy “comforts” purchased in the prison commissary; “If the
inmate thinks a more worthwhile use of his funds would be to buy peanuts and candy ... than to
file a civil rights suit, he has demonstrated an implied evaluation of the suit that the district court
is entitled to honor.”).) Here, Plaintiff clearly prioritized his own purchases over the obligation to
pay the filing fee in this action as he had over $500.00 in deposits to his account at his disposal

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the month before he filed this action. Rather than pay the filing fee for this action, it appears

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Plaintiff spent this money for his own comforts.
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”).

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Accordingly, it is HEREBY ORDERD to that within 21 days of the date of service of

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this order, Plaintiff must show cause why his in forma pauperis status should not be denied and

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this action dismissed without prejudice to refiling with prepayment of the filing fee.

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IT IS SO ORDERED.
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Dated:

August 30, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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