(PC) McDowell v. Flores

Opinion

JONATHAN DEWITT MCDOWELL, Case No. 1:21-cv-01710-BAK (PC) Plaintiff, ORDER TO SHOW CAUSE WHY MOTION v. TO PROCEED IN FORMA PAUPERIS SHOULD NOT BE DENIED R. FLORES, et al., 21-DAY DEADLINE Defendants. Plaintiff Jonathan Dewitt McDowell (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action. On December 27, 2021, Plaintiff filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. (Doc. No. 4.) According to the certified account statement attached to his motion, Plaintiff had $1,595.36 in his inmate trust account as of July 31, 2021, and $1,191.96 as of October 12, 2021, approximately two months before he filed his motion. (Id. at 4.) This was more than enough to pay the $402 filing fee for this action. Plaintiff then withdrew and spent the majority of his available funds. (See id.) Therefore, Plaintiff must show why he is entitled to proceed in forma pauperis. 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 in forma pauperis, 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. 15-cv-2628-MMA- MDD, 2015 U.S. Dist. LEXIS 173063, *2 (S.D. Cal. 2015) (citation omitted). Hence, “the court shall dismiss the case at any time if the court determines that the [plaintiff's] allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2){A). According to his inmate trust account, Plaintiff had adequate funds to pay the filing fee for this action. Accordingly, the Court ORDERS Plaintiff, within 21 days of the date of service of this order, to show cause in writing why his motion to proceed IFP should not be denied. Failure torespond to this order will result in a recommendation that this action be dismissed for failure to obey a court order. Dated: _ January 13,2022 Wile. Th fareh Zack HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE