(PC) Diaz v. Unknown

• Court: District Court, E.D. California
• Decided: June 27, 2024
• Docket: 1:24-cv-00745
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELIAS SERDA DIAZ, Case No. 1:24-cv-00745-HBK (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY PLAINTIFF’S MOTION TO PROCEED IN 13 v. FORMA PAUPERIS SHOULD NOT BE DENIED 14 TYLER, et al., (Doc. No. 3) 15 Defendants. FOURTEEN-DAY DEADLINE 16

17 18 Plaintiff Elias Serda Diaz, a prisoner, initiated this action by filing a pro se civil rights 19 complaint pursuant to 42 U.S.C. § 1983 on June 24, 2024. (Doc. Nos. 1, 2). Plaintiff 20 accompanied the filing of his complaint with an application to proceed in forma pauperis (“IFP”). 21 (Doc. No. 3). The certified trust account submitted by the California Department of Corrections 22 and Rehabilitation in support of Plaintiff’s IFP application reflects a balance of $1,578.36 as of 23 June 25, 2024. (Doc. No. 6). This amount well exceeds the $405.00 filing fee for this action. 24 Plaintiff is therefore ordered to show cause why he meets the indigence requirement for eligibility 25 to proceed IFP. 26 Proceeding IFP is “a matter of privilege and not right.” Franklin v. Murphy, 745 F.2d 27 1221, 1231 (9th Cir. 1984) (abrogated on different grounds). While IFP applicants need not be 28 “destitute” a showing of indigence is required. Adkins v. E.I. DuPont de Nemours & Co., 335 1 | US. 331, 339-40 (1948). Plaintiff must allege indigence “with some particularity, definiteness 2 | and certainty” before IFP can be granted. United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 3 1981). 4 Plaintiff appears to have adequate funds to pay the filing fee for this action in full. While 5 | abalance of $1,578.36 appears modest at first blush it is sizeable considering Plaintiff does not 6 || incur expenses in prison for necessities such as sustenance, housing and medical care. Plaintiff 7 | therefore is ordered to show cause why he cannot afford to pay the filing fee and is entitled to 8 || proceed IFP. Failure to respond will result in a recommendation that this action be dismissed for 9 | failure to obey a court order. 10 Accordingly, it is ORDERED: 11 Within fourteen days from receipt of this Order, Plaintiff shall either: (1) withdraw his 12 | motion to proceed in forma pauperis and direct CDCR to pay the $405.00 filing fee; or (2) show 13 | cause why he meets the indigence requirement to proceed in forma pauperis. 14 | Dated: _ June 27. 2024 law Nh. fareh Base □□□ 16 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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