Ayers v. Fellowship of Christian Athletes, et al., No. 1:2018cv01026 - Document 6 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS denying Application to Proceed In Forma Paupers 3 , 5 signed by Magistrate Judge Stanley A. Boone on 8/2/2018. Referred to Judge Anthony W. Ishii; Objections to F&R due within 14-Days. (Lundstrom, T)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANNE KIMIKO AYERS, Plaintiff, 12 FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS v. 13 14 Case No. 1:18-cv-01026-AWI-SAB FELLOWSHIP OF CHRISTIAN ATHLETES, et al., (ECF No. 3, 5) 15 Defendants. OBJECTIONS DUE WITHIN FOURTEEN DAYS 16 17 18 On July 30, 2018, Plaintiff Anne Kimiko Ayers (“Plaintiff”) filed a civil rights complaint 19 in this action pursuant to 42 U.S.C. § 1983. (ECF No. 2.) Along with her complaint, Plaintiff 20 filed an application to proceed in forma pauperis without prepayment of the filing fee. (ECF No. 21 3.) Upon review of Plaintiff’s application, the Court found that it did not demonstrate Plaintiff 22 was unable to pay the filing fee so an order issued requiring Plaintiff to file a long form 23 application to proceed in forma pauperis to address her household income and expenses. (ECF 24 No. 4.) On August 1, 2018, Plaintiff filed a long form application to proceed without 25 prepayment of fees. (ECF No. 5.) 26 Pursuant to 28 U.S.C. § 1915, federal courts can authorize the commencement of any suit 27 without prepayment of fees by a person who submits an affidavit demonstrating that the person 28 is unable to pay such fees. 28 U.S.C. § 1915(a)(1). “[A]n affidavit is sufficient which states that 1 1 one cannot because of his poverty ‘pay or give security for the costs . . . and still be able to 2 provide’ himself and dependents ‘with the necessities of life.’ ” Adkins v. E.I. DuPont de 3 Nemours & Co., 335 U.S. 331, 339 (1948). “When a claim of poverty is made under section 4 1915 ‘it is proper and indeed essential for the supporting affidavits to state the facts as to 5 affiant’s poverty with some particularity, definiteness and certainty.’ ” United States v. 6 McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 7 725 (9th Cir. 1960)). 8 In the application to proceed without prepayment of fees, Plaintiff states that she receives 9 income of $132.00 per month which she will be continuing to receive into September 2018. She 10 has $1,300.00 in her checking account and expenses of $20.00 per month for transportation and 11 $20.00 per month for recreation for a total monthly expense of $40.00. Plaintiff states that she 12 will begin college in the fall and will be looking for employment after she checks into her dorm. 13 It would appear from the application filed that Plaintiff’s living expenses are paid by her parents. 14 Plaintiff has not addressed her household income and expenses as directed by the July 31, 2018 15 order. Plaintiff has not demonstrated that that she is unable to pay the filing fee in this matter. 16 Review of Plaintiff’s application to proceed in forma pauperis demonstrates that she has 17 the ability to pay the $400.00 filing fee in this action. The Court finds that Plaintiff is not 18 eligible to proceed in forma pauperis under 28 U.S.C. § 1915. 19 Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s application to proceed in 20 forma pauperis be DENIED. 21 These findings and recommendations are submitted to the district judge assigned to this 22 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 23 (14) days of service of this recommendation, any party may file written objections to these 24 findings and recommendations with the Court and serve a copy on all parties. Such a document 25 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 26 district judge will review the magistrate judge’s findings and recommendations pursuant to 28 27 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 28 time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 2 1 Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 3 IT IS SO ORDERED. 4 Dated: August 2, 2018 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3