(PC) Rodriguez v. Cate et al

Filing 21

FINDINGS and RECOMMENDATIONS to Deny Plaintiff's Motion to Proceed In Forma Pauperis; Clerk of Court to Assign District Judge, signed by Magistrate Judge Sheila K. Oberto on 08/23/2021. Referred to Judge Unassigned DJ. Objections to F&R Due Within Fourteen-Days. (Maldonado, C)

Case 1:21-cv-00898-NONE-SKO Document 21 Filed 08/24/21 Page 1 of 3
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERICK EDDIE RODRIGUEZ,

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Plaintiff,

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v.
MATTHEW CATE, et al.,
Defendants.

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Case No. 1:21-cv-00898-SKO (PC)
FINDINGS AND RECOMMENDATIONS
TO DENY PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS
(Doc. 2)
14-DAY DEADLINE
Clerk of the Court to Assign District Judge

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Plaintiff Erick Eddie Rodriguez initiated this action on September 10, 2019. (Doc. 1.) On

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that same date, Plaintiff filed a motion to proceed in forma pauperis (“IFP”). (Doc. 2.) On June 4,

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2021, Magistrate Judge Allison Claire issued an order transferring this case to the Fresno Division

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of the Eastern District of California. (Doc. 15.) The Court has not yet ruled on Plaintiff’s motion

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to proceed IFP.
According to the inmate trust account statement submitted by the California Department

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of Corrections and Rehabilitation, Plaintiff had $842.91 in his trust account on the date he

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submitted his IFP application. (Doc. 6). This is more than enough to pay the $402 filing fee for

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this action. Therefore, the Court issued an order to show cause why Plaintiff’s motion to proceed

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IFP should not be denied. (Doc. 17.)

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Case 1:21-cv-00898-NONE-SKO Document 21 Filed 08/24/21 Page 2 of 3
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Plaintiff filed a response to the order to show cause on August 19, 2021. (Doc. 19.) In his

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response, Plaintiff states that he does not have sufficient funds “at the moment” to pay the filing

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fee. (Id. at 1.) However, Plaintiff does not deny that he had sufficient funds at the time he filed his

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IFP application. Plaintiff requests that, if the Court were to deny his request to proceed IFP, that

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he be provided an extension of time to pay the filing fee. (Id. at 2.)

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As explained in its order to show cause, proceeding “in forma pauperis is a privilege not a

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right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). While a party need not be completely

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destitute to proceed in forma pauperis, Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331,

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339-40 (1948), “‘the same even-handed care must be employed to assure that federal funds are

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not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a

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suitor who is financially able, in whole or in material part, to pull his own oar,’” Doe v. Educ.

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Enrichment Sys., No. 15-cv-2628-MMA-MDD, 2015 U.S. Dist. LEXIS 173063, *2 (S.D. Cal.

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2015) (citation omitted). In addition, courts are entitled to considered plaintiffs’ “economic

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choices about how to spend [their] money” when considering applications to proceed IFP.

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Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (citation omitted); see also Lumbert v.

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Illinois Dep’t of Corr., 827 F.2d 257, 260 (7th Cir. 1987) (“If the inmate thinks that 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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Plaintiff had adequate funds to pay the filing fee for this action when he filed his motion

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to proceed IFP, and he has not demonstrated that he spent the funds on “necessities” while

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incarcerated, i.e., while his basic necessities were covered by the state of California. See Lumbert,

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827 F.2d at 260. Hence, Plaintiff’s IFP motion should be denied. However, the Court

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acknowledges that nearly two years have passed since Plaintiff filed his IFP motion; therefore, an

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extension of time to pay the filing fee is warranted.

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Accordingly, the Court 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 granted 90 days from the date of the order adopting these findings and

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recommendations to pay the filing fee.
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Case 1:21-cv-00898-NONE-SKO Document 21 Filed 08/24/21 Page 3 of 3
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The Court DIRECTS the Clerk of the Court to:

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1. Assign a district judge to this action; and,

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2. Serve these findings and recommendations on Plaintiff at the temporary location
provided in Plaintiff’s July 16, 2021 notice (Doc. 18).

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These Findings and Recommendations will be submitted to the United States District

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

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service of these Findings and Recommendations, Plaintiff may file written objections with the

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

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Recommendations.” Failure to file objections within the specified time may result in waiver of

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

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

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IT IS SO ORDERED.
Dated:

/s/ Sheila K. Oberto

August 23, 2021

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UNITED STATES MAGISTRATE JUDGE

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