(PC) Davis v. Akabike

• Court: District Court, E.D. California
• Decided: February 10, 2020
• Docket: 1:19-cv-01504
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 ANTHONY DAVIS, CASE NO. 1:19-cv-1504 DAD JLT (PC)

12 Plaintiff, ORDER TO SHOW CAUSE WHY PLAINTIFF’S MOTION TO PROCEED IN 13 v. FORMA PAUPERIS SHOULD NOT BE DENIED 14 DR. N. AKABIKE, (Docs. 2, 6)

15 Defendant. 21-DAY DEADLINE 16 Plaintiff has applied to proceed in forma pauperis. (Doc. 2.) The Inmate Statement Report 17 submitted by the California Department of Corrections and Rehabilitation in support of plaintiff’s 18 application shows an account balance fluctuating between $0.21 and $408.90, with the balance 19 for the three months before plaintiff filed this case ranging between $198 and $408.90. 20 Proceeding “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 21 116 (9th Cir. 1965). While a party need not be completely destitute to proceed IFP, Adkins v. 22 E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948), “the same even-handed care must 23 be employed to assure that federal funds are not squandered to underwrite, at public expense, 24 either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in 25 material part, to pull his own oar.” Doe v. Educ. Enrichment Sys., No. 15cv2628-MMA (MDD), 26 2015 U.S. Dist. LEXIS 173063, *2 (S.D. Cal. Dec. 30, 2015) (citing Temple v. Ellerthorpe, 586 27 F. Supp. 848, 850 (D.R.I. 1984)). “[T]he court shall dismiss the case at any time if the court 28 1 determines the allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A). It appears that 2 plaintiff has had sufficient funds over the last several months to be required to pay the filing fee 3 in full to proceed in this action, but he chose to spend his money differently. 4 Accordingly, the Court ORDERS that within 21 days of the date of service of this order, 5 plaintiff shall show cause why his motion to proceed in forma pauperis should not be denied and 6 he be required to pay the filing fee in full before proceeding. Alternatively, plaintiff may file a 7 notice of voluntary dismissal. 8 Failure to respond to this order will result in dismissal for failure to obey a court 9 order. 10 IT IS SO ORDERED. 11 12 Dated: February 10, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 13

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28