(PC) Lewis v. Cisneros

Filing 10

FINDINGS and RECOMMENDATIONS to deny Plaintiff's Motion to proceed In Forma Pauperis #2 ; Clerk to assign District Judge to case signed by Magistrate Judge Jennifer L. Thurston on 2/18/2021. Referred to Judge Anthony W. Ishii; Objections to F&R due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL DIXON LEWIS,

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Plaintiff,

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v.

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T. CISNEROS,

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Case No.: 1:21-cv-00115-JLT (PC)
FINDINGS AND RECOMMENDATIONS
TO DENY PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS
(Doc. 2)

Defendant.

14-DAY DEADLINE
Clerk of the Court to Assign a District Judge

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On January 28, 2021, Plaintiff filed a motion to proceed in forma pauperis (IFP). (Doc. 2.)

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The certified account statement submitted by the California Department of Corrections and

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Rehabilitation indicates that, as of January 27, 2021, Plaintiff had $1,050.05 in his inmate trust

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account. (Doc. 6.) This is more than enough to pay the filing fee of $402 in full.

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Accordingly, on January 30, 2021, the Court ordered Plaintiff to show cause why his

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motion to proceed IFP should not be denied. (Doc. 7.) Plaintiff responded to the order on

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February 17, 2021. (Doc. 8.) Plaintiff does not deny that he has sufficient funds to pay the filing

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fee, but he states that the funds were provided pursuant to the CARES Act “so that [he’s] able to

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take care [of himself.]” (Id.) Plaintiff, however, does not explain why the funds are necessary for

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his care, given that his “basic needs are provided by the State.” Clifton v. Curry, No. 2:20-cv-

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02149-JDP, 2020 WL 6526126, at *1 (E.D. Cal. 2020).

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Plaintiff is correct that access to the Court is a right. (Doc. 8.) But as explained in the

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Court’s order to show cause, proceeding “in forma pauperis is a privilege.” Smart v. Heinze, 347

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F.2d 114, 116 (9th Cir. 1965). While a party need not be completely destitute to proceed IFP,

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

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

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

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pull his own oar.’” Doe v. Educ. Enrichment Sys., No. 15cv2628-MMA-MDD, 2015 U.S. Dist.

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LEXIS 173063, *2 (S.D. Cal. 2015) (citation omitted).

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Plaintiff has sufficient funds in his inmate trust account to pay the filing fee in full.

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Accordingly, the Court DIRECTS the Clerk of the Court to assign a district judge to this action

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and RECOMMENDS that:

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1. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) be DENIED; and,

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2. Plaintiff be required to pay the filing fee of $402 within 30 days of the assigned
district judge’s adoption of these findings and recommendations.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days of the

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date of service of these findings and recommendations, Plaintiff may file written objections with

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the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff’s failure to file objections within the specified time may result in

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waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

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

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IT IS SO ORDERED.
Dated:

February 18, 2021

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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