(PC) Franco v. Levin

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA

11 ALEXANDER FRANCO, CASE NO. 1:19-cv-0764 JLT (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY PLAINTIFF’S MOTION TO PROCEED IN 13 v. FORMA PAUPERIS SHOULD NOT BE DENIED LEVIN, et al., (Docs. 2, 8) Defendants. 21-DAY DEADLINE 17 The Certificate of Funds in Prisoner’s Account submitted in support of plaintiff’s application to proceed in forma pauperis reveals average deposits each month totaling $160, and an average monthly prisoner balance of $160. (Doc. 2.) Additionally, the Inmate Statement Report submitted by the California Department of Corrections and Rehabilitation shows an account balance fluctuating between $57.46 and $641.61.

22 Proceeding “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). While a party need not be completely destitute to proceed IFP, Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948), “the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar.” Doe v. Educ. Enrichment Sys., No. 15cv2628-MMA (MDD), 2015 U.S. Dist. LEXIS 173063, *2 (S.D. Cal. Dec. 30, 2015) (citing Temple v. Ellerthorpe, 586 2 F. Supp. 848, 850 (D.R.I. 1984)). “[T]he court shall dismiss the case at any time if the court determines the allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A). It appears that plaintiff has had sufficient funds over the last several months to be required to pay the filing fee in full to proceed in this action, but he chose to spend his money elsewhere.

6 Accordingly, the Court ORDERS that within 21 days of the date of service of this order, plaintiff shall show cause why his motion to proceed in forma pauperis should not be denied and this action dismissed without prejudice to refiling with prepayment of the filing fee; alternatively, plaintiff may file a notice of voluntary dismissal.

10 Failure to respond to this order will result in dismissal for failure to obey a court order.

IT IS SO ORDERED.

Dated: February 6, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE