Freemanvibe et al v. Valley Arts and Science Academy et al, No. 1:2012cv01727 - Document 6 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 3 Plaintiff's Motion to Proceed In Forma Pauperis be DENIED Without Prejudice and Plaintiff be Directed to Submit a Completed Application to Proceed In Forma Pauperis or Pay Filing Fee, signed by Magistrate Judge Barbara A. McAuliffe on 10/26/2012. Referred to Judge Ishii. Objections to F&R due within fifteen (15) days. (Jessen, A)
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Freemanvibe et al v. Valley Arts and Science Academy et al Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 INDIGO FREEMANVIBE, et. al, 11 12 13 14 15 ) ) Plaintiff, ) ) v. ) ) VALLEY ARTS and SCIENCE ACADEMY, ) et. al, ) ) Defendants. ) _____________________________________ ) 1:12-cv-1727 LJO BAM FINDINGS AND RECOMMENDATIONS DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS WITHOUT PREJUDICE AND TO SUBMIT A COMPLETED APPLICATION TO PROCEED IN FORMA PAUPERIS OR PAY FILING FEE WITHIN 30 DAYS 16 17 18 19 Plaintiff Indigo Freemanvibe is proceeding pro se in this civil action, having filed a complaint 20 on October 19, 2012. (Doc. 1). That same date, she submitted an application to proceed in forma 21 pauperis pursuant to Title 28 of the United States Code section 1915. (Doc. 3). For the reasons 22 discussed below, this Court recommends that Plaintiff's application should be DENIED. 23 Federal courts can authorize the commencement of any suit without prepayment of fees or 24 security by a person who submits an affidavit that includes a statement of all assets the person 25 possesses, demonstrating he or she is unable to pay such costs or give such security. See 28 U.S.C. 26 § 1915(a)(1). When reviewing a motion filed pursuant to § 1915(a), the court examines whether the 27 28 1 Dockets.Justia.com 1 statements in the affidavit satisfy the requirement of poverty. See Martinez v. Kristi Kleaners, Inc., 2 364 F.3d 1305, 1307 (11th Cir.2004). While § 1915(a) does not require a litigant to demonstrate 3 absolute destitution, the applicant must nonetheless show that she is “unable to pay such fees or give 4 security therefor.” 28 U.S.C. § 1915(a). Motions to proceed in forma pauperis are addressed to the 5 sound discretion of the District Court. United States v. McQuade, 647 F.2d 938, 940 (9th Cir.1981), 6 cert. denied, 455 U.S. 958 (1982). Where the moving party fails to establish poverty, it is within the 7 discretion of the court to deny the motion to proceed in forma pauperis. Id. 8 A review of the application reveals that Plaintiff failed to submit a completed form. 9 Specifically, Plaintiff did not provide information regarding the amount of money that she has in 10 cash, or in a checking or savings account. Moreover, Plaintiff indicates that she is self-employed, 11 has received disability benefits, and income from gifts and inheritances, but she did not provide 12 information regarding the amount of money she has received. As a result, this Court is unable to 13 fully consider Plaintiff’s assets and eligibility to proceed without prepayment of fees. Therefore, 14 Plaintiff's application should be DENIED WITHOUT PREJUDICE. 15 Accordingly, IT IS HEREBY RECOMMENDED that: 16 Within thirty (30) days of the date of service of this order, Plaintiff shall complete and submit 17 the attached application to proceed in forma pauperis, fully completed and signed, or in the 18 alternative, pay the $350.00 filing fee for this action. No requests for extension will be granted 19 without a showing of good cause. Failure to comply with this order will result in a 20 recommendation that this action be dismissed. 21 These Findings and Recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the 23 Local Rules of Practice for the United States District Court, Eastern District of California. Within 24 fifteen (15) days after being served with these Findings and Recommendations, any party may file 25 written objections with the court and serve a copy on all parties. Such a document should be 26 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge 27 28 2 1 will review the magistrate judge’s findings and recommendations pursuant to Title 28 of the United 2 States Code section 636(b)(1)(C). The parties are advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 4 1153 (9th Cir. 1991). 5 6 IT IS SO ORDERED. Dated: 10c20k October 26, 2012 /s/ Barbara A. McAuliffe 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 3
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