Duran v. Macias-Price et al, No. 1:2007cv01209 - Document 3 (E.D. Cal. 2007)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's application to proceed in forma pauperis be DENIED signed by Judge Sandra M. Snyder on 08/24/2007. Motion referred to Judge Anthony W. Ishii, Objections to F&R due by 10/1/2007. (Esteves, C)
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Duran v. Macias-Price et al Doc. 3 Case 1:07-cv-01209-AWI-SMS Document 3 Filed 08/27/2007 Page 1 of 3 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 JOHN DURAN, 11 Plaintiff, 12 v. 13 14 15 16 LORI MACIAS-PRICE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) 1:07-cv-01209-AWI-SMS FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS (DOC. 2) 17 Plaintiff is proceeding pro se with an action for damages 18 and other relief concerning alleged civil rights violations. The 19 matter has been referred to the Magistrate Judge pursuant to 28 20 U.S.C. § 636(b) and Local Rules 72-302 and 72-304. 21 Pending before the Court is the Plaintiff’s application to 22 proceed in forma pauperis, filed on August 20, 2007. 23 In the application, Plaintiff states that he is employed and 24 makes $3025 per month; he owns a home and lists two cars, 25 although one belongs to his spouse. He has a savings account with 26 $76.00; his only dependent is his spouse. He received unspecified 27 amounts of worker’s compensation payments when he was off work 28 1 Dockets.Justia.com Case 1:07-cv-01209-AWI-SMS 1 2 Document 3 Filed 08/27/2007 Page 2 of 3 from May 2006 through February 2007. Title 28 U.S.C. § 1915(a)(1) provides that any court of the 3 United States may authorize the commencement, prosecution of 4 defense of any civil or criminal suit, action, proceeding, or any 5 appeal therein, without prepayment of fees or security therefor, 6 by a person who submits an affidavit that includes a statement of 7 all assets the person possesses and that the person is unable to 8 pay such fees or give security therefor. Id.; Floyd v. United 9 States Postal Service, 105 F.3d 274, 275-77 (6th Cir. 1997), 10 modified on other grounds in Callihan v. Schneider, 178 F.3d 800, 11 801 (6th Cir. 1999). 12 Section 1915(a) does not require that the litigant be 13 destitute; rather, a party must not be required to choose either 14 to abandon a potentially meritorious claim or to forego the 15 necessities of life. Potnick v. Eastern State Hospital, 701 F.2d 16 243, 244 (2nd Cir. 1983) (citing Adkins v. E.I. DuPont de Nemours 17 & Co., Inc., 335 U.S. 331, 339, (1948)). Plaintiff here has not 18 demonstrated that he is unable to pay or guarantee costs without 19 sacrificing the necessities of life. Cf. Sears, Roebuck & Co. v. 20 Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23-24 (2nd Cir. 21 1988) (poverty not established where the party had $20,000 net 22 annual income). 23 Accordingly, it IS RECOMMENDED that Plaintiff’s application 24 to proceed in forma pauperis BE DENIED, and that Plaintiff BE 25 ORDERED to pay the $350.00 filing fee within thirty days or face 26 dismissal of the action. 27 28 This report and recommendation is submitted to the United States District Court Judge assigned to the case, pursuant to the 2 Case 1:07-cv-01209-AWI-SMS Document 3 Filed 08/27/2007 Page 3 of 3 1 provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 2 Local Rules of Practice for the United States District Court, 3 Eastern District of California. Within thirty (30) days after 4 being served with a copy, any party may file written objections 5 with the Court and serve a copy on all parties. Such a document 6 should be captioned “Objections to Magistrate Judge’s Findings 7 and Recommendations.” Replies to the objections shall be served 8 and filed within ten (10) court days (plus three days if served 9 by mail) after service of the objections. The Court will then 10 review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 11 (b)(1)(C). The parties are advised that failure to file 12 objections within the specified time may waive the right to 13 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 14 1153 (9th Cir. 1991). 15 16 IT IS SO ORDERED. 17 Dated: icido3 August 24, 2007 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3
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