(PC) Arteaga v. Neve

Opinion

JOSE ARTEAGA, Case No.: 1:19-cv-01001-SKO (PC)

Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO v. PROCEED IN FORMA PAUPERIS

D. NEVE, et al., (Docs. 11, 15)

Defendants. 21-DAY DEADLINE

Clerk of the Court to assign a District Judge On November 18, 2019, Plaintiff Jose Arteaga filed a motion to proceed in forma pauperis (IFP). (Doc. 11.) The Inmate Statement Report included with Plaintiff’s motion indicates that, as of September 19, 2019, Plaintiff had $1,186.72 in his inmate trust account. (Id. at 9.) During the preceding six months, Plaintiff had an average monthly balance of approximately $1,486. (See id.) Thus, it appears that Plaintiff has adequate funds to pay the filing fee of $400 in full to proceed in this action. Accordingly, on November 25, 2019, the Court issued an order to show cause why Plaintiff’s IFP motion should not be denied. (Doc. 13.) Plaintiff responded on December 20, 2019.1 (Doc. 15.) In his response, Plaintiff does not contest that he has adequate funds to pay the

1 filing fee in this action, and he discusses the efforts he has made to attempt to pay the fee from his inmate trust account. (See id. at 2-4.) Plaintiff states that he was under the assumption that all prisoners must file IFP applications as a matter of course, and that he did not intend to mislead the Court about his ability to pay the filing fee. (See id.) As the Court previously explained, (see Doc. 13 at 1), 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, … 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. 2015) (quoting Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984)). Since Plaintiff is able to pay the filing fee in full in this action, the Court HEREBY RECOMMENDS that: 1. Plaintiff’s motion to proceed in forma pauperis, (Doc. 11) be DENIED; and, 2. Plaintiff be required to pay the filing fee of $400.00 within 30 days of the assigned District Judge adopting these findings and recommendations. The Court DIRECTS the Clerk of the Court to randomly assign a District Judge to this action. These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days of the date of service of these findings and recommendations, Plaintiff may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.

Sheila K. Oberto January 2, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE