Ali v. Hudson Insurance Company, et al., No. 1:2016cv01743 - Document 4 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS recommending that plaintiff's in forma pauperis application be DENIED, document 2 , and that plaintiff be required to submit the filing fee of $400.00. These findings and recommendations are referred to Judge Dale A. Drozd, with objections due within fourteen days after service of this order. Order signed by Magistrate Judge Erica P. Grosjean on 12/12/2016. (Rooney, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 Case No. 1:16-cv-01743-DAD-EPG HUSSEIN ALI, Plaintiff, v. HUDSON INSURANCE COMPANY; AMERICAN SAFETY CASUALTY INSURANCE COMPANY; AEGIS SECURITY INSURANCE COMPANY; and PHILADELPHIA INDEMNITY INSURANCE COMPANY, FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS (ECF No. 2) Defendants. Plaintiff Hussein Ali, proceeding pro se, filed an application to proceed in forma pauperis 20 (“IFP”) on November 17, 2016. (ECF No. 2.) For the reasons that follow, the Court 21 RECOMMENDS that Plaintiff’s application be DENIED. 22 An action may proceed despite a plaintiff’s failure to prepay a filing fee only if the 23 plaintiff is granted leave to proceed IFP under 28 U.S.C. § 1915(a). To receive such leave, a 24 plaintiff must submit an affidavit showing his or her inability to pay the requested fees. 28 U.S.C. 25 § 1915(a); O’Laughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990). A demonstration of inability to 26 pay requires that a plaintiff show that he or she “cannot because of poverty pay or give security 27 for the costs and still be able to provide himself and dependents with the necessities of life.” 28 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). The determination whether a 1 1 party can proceed IFP is a “matter within the discretion of the trial court and in civil actions for 2 damages should be allowed only in exceptional circumstances.” Schweitzer v. Scott, 469 F.Supp. 3 1017, 1019 (C.D. Cal. 1979), quoting Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963); 4 Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“court permission to proceed in forma 5 pauperis is itself a matter of privilege and not right; denial of in forma pauperis status does not 6 violate the applicant’s right to due process”). In examining an application for IFP status, “even-handed care must be employed to assure 7 8 that federal funds are not squandered to underwrite, at public expense, either frivolous claims or 9 the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own 10 oar.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D. R.I. 1984) (“petitioners with modest cash 11 reserves are not paupers within the intendment of 28 U.S.C. § 1915(a) for the purpose of filing 12 fees, initial service of process costs and the like”). A claim is ‘frivolous’ when it is without ‘basis 13 in law or fact,’ and ‘malicious’ when it is ‘filed with the intention or desire to harm another.’” 14 Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013). A finding of frivolity in this context is 15 equivalent to finding a lack of good faith. Id. at 1110. A lack of good faith can be inferred where 16 “plaintiffs seek to exploit the court system solely for delay or to vex defendants.” Vega v. 17 JPMorgan Chase Bank, N.A., 654 F.Supp.2d 1104, 1121 (E.D. Cal. 2009). The Court may 18 consider “the records and files of the court or other material properly noticed by the court” to 19 evaluate whether a claim is frivolous. Franklin, 745 F.2d at 1231. 20 In this instance, the Court takes judicial notice of Ali v. Hudson Insurance Company et al., 21 Case No. 1:16-cv-00409-DAD-EPG (“Ali I”), which alleges claims against no less than 16 22 separate defendants, including the defendants in the present case.1 The docket of Ali I reflects that 23 the Defendants in this case were voluntarily dismissed from Ali I by Plaintiff on July 13, 2016 24 and August 18, 2016. The complaint in Ali I appears to be substantially similar to the complaint in 25 this case, in that both allege that Plaintiff loaned a sum of money to two individuals, did not 26 1 27 28 The Court may take judicial notice “of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2006), quoting United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 2 1 receive repayment from those individuals, and assert a host of claims against those individuals, as 2 well as a number of other defendants that are even tangentially related to those individuals. The 3 defendants in the present case allegedly provided bonds or insured property owned by the 4 corporate defendants associated with the two individuals. Plaintiff appears to have dismissed the 5 insurance company defendants shortly after motions to dismiss were filed on their behalf in Ali I. 6 The Court also takes judicial notice of a case in Fresno County Superior Court, Ali v. 7 Jawad et al., Case No. 14 CE CG 03594 (“Ali II”), which included claims against Defendants 8 Hudson Insurance Company, American Safety Casualty Insurance Company, and Aegis Security 9 Insurance Company, among a dozen other defendants. The claims Ali II appear to arise out of the 10 same set of facts. The claims against Defendants Hudson Insurance Company, American Safety 11 Casualty Insurance Company, and Aegis Security Insurance Company in Ali II were dismissed 12 without leave to amend by the court on June 1, 2015. The initial complaint in Ali I was filed 13 shortly thereafter, on June 30, 2015. 14 The Court thus finds that the Complaint in this action is not filed in good faith and has 15 been filed to delay proceedings and harass the Defendants. While the Court does not reach the 16 merits of any of Plaintiff’s allegations at this point in time, it can determine based on these facts 17 that Plaintiff is not entitled to proceed without prepayment of the $400 filing fee. Very little 18 suggests that this case should fall within the “exceptional circumstances” justifying IFP status. 19 Based on the foregoing, the Court RECOMMENDS that: 20 1. Plaintiff’s Application to Proceed In Forma Pauperis (ECF No. 2) be DENIED; and, 21 2. Plaintiff be required to submit the filing fee of $400. 22 These findings and recommendations will be submitted to the United States District Judge 23 assigned to this case pursuant to the provisions of Title 28 of the United States Code section 24 636(b)(1). Within fourteen (14) days after being served with these findings and 25 recommendations, the parties may file written objections with the Court. The document should be 26 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 27 \\\ 28 \\\ 3 1 The parties are advised that failure to file objections within the specified time may waive 2 the right to appeal the District Court’s order. Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 3 2015). 4 5 6 IT IS SO ORDERED. Dated: December 12, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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