Bryant v. Select Services Portfolio et al, No. 1:2016cv01642 - Document 8 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS Recommending t Denying Plaintiff's 2 5 Application to Proceed without Prepayment of Fees; Objections Due within Twenty Days signed by Magistrate Judge Stanley A. Boone on 12/20/2016. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 1/12/2017. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARY J. BRYANT, Plaintiff, 12 13 Case No. 1:16-cv-1642-LJO-SAB FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES v. 14 SELECT SERVICES PORTFOLIO, et al., 15 Defendants. (ECF Nos. 2, 5) OBJECTIONS DUE WITHIN TWENTY DAYS 16 17 18 I. 19 PROCEDURAL HISTORY 20 Plaintiff Mary Bryant, proceeding pro se, filed this action on October 31, 2016. (ECF 21 No. 1.) Along with her complaint, Plaintiff filed an application to proceed in this action without 22 prepayment of fees. (ECF No. 2.) Upon reviewing Plaintiff’s application, the Court found that it 23 was insufficient to determine if Plaintiff was entitled to proceed without prepayment of fees in 24 this action. On November 3, 2016, an order issued requiring Plaintiff to file a long form 25 application to proceed without prepayment of fees or pay the filing fee in this action within 26 twenty days. (ECF No. 3.) Plaintiff did not comply with the November 3, 2016 order. On 27 December 7, 2016, findings and recommendations issued recommending dismissing this action 28 for Plaintiff’s failure to pay the filing fee or file an application to proceed without prepayment of 1 1 fees. (ECF No. 4.) 2 On December 19, 2016, Plaintiff filed the instant application to proceed without 3 prepayment of fees. (ECF No. 5.) Concurrently with this findings and recommendations, the 4 Court will be issuing an order vacating the December 7, 2016 findings and recommendations. 5 The Court has reviewed Plaintiff’s long form application to proceed without prepayment of fees 6 and finds that Plaintiff has not demonstrated entitlement to proceeding in this action without 7 payment of the filing fee. 8 II. 9 DISCUSSION 10 In order to proceed in court without prepayment of the filing fee, Plaintiff must submit an 11 affidavit demonstrating that she “is unable to pay such fees or give security therefor.” 28 U.S.C. 12 § 1915(a)(1). In assessing whether a certain income level meets the poverty threshold under 13 Section 1915(a)(1), courts look to the federal poverty guidelines developed each year by the 14 Department of Health and Human Services. See, e.g., Lint v. City of Boise, No. CV09-72-S15 EJL, 2009 WL 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited therein). 16 Plaintiff’s original application to proceed without prepayment of fees states that no other 17 person depends upon Plaintiff for support. (ECF No. 2 at 2.) The 2016 Poverty Guidelines for 18 the 48 contiguous states for a household of one is $11,880.00. 2016 Poverty Guidelines, 19 (last visited December 20, 2016). 20 Plaintiff states that for December 2016 she received $1,800.00 per month from 21 employment; $1,500.00 per month from rental property; and $320.00 per month from retirement. 22 This totals $3,630.00 for the month. Based upon her December income sources, this amounts to 23 $43,440.00 per year. Plaintiff also indicated that she owns three homes “in litigation” that total 24 in value $208,000.00. (ECF No. 5 at 3.) 25 Plaintiff’s application to proceed in forma pauperis demonstrates that Plaintiff is able to 26 pay the $400.00 filing fee in this action. Plaintiff reported $3,630.00 in income and only 27 $725.00 in monthly expenses. (ECF No. 5 at 5.) Plaintiff states that she is expecting income of 28 $1,820.00 next month. For the year, this will amount to $21,840.00 in yearly income. This 2 1 amount is still well above the poverty level. Even considering that Plaintiff has indicated she is 2 expecting to receive less income in January, Plaintiff’s income compared to expenses 3 demonstrates that she is able to pay the $400.00 filing fee. Based upon both her current and 4 anticipated monthly income, Plaintiff’s income exceeds her expenses by well over $1,000.00 per 5 month. For these reasons, the Court finds that Plaintiff is not eligible to proceed in this action 6 without prepayment of fees. 7 III. 8 CONCLUSION AND RECOMMENDATIONS Based upon the foregoing, the Court finds that Plaintiff is not eligible to proceed in forma 9 10 pauperis under 28 U.S.C. § 1915. Accordingly, it is HEREBY RECOMMENDED that 11 Plaintiff’s application to proceed in forma pauperis is DENIED. These findings and recommendations are submitted to the district judge assigned to this 12 13 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty 14 (20) days of service of this recommendation, any party may file written objections to these 15 findings and recommendations with the Court and serve a copy on all parties. Such a document 16 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 17 district judge will review the magistrate judge’s findings and recommendations pursuant to 28 18 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 19 time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 20 Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 IT IS SO ORDERED. 23 Dated: December 20, 2016 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3