(PS) Alfaro v. Marin, No. 2:2010cv02372 - Document 3 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/7/10, RECOMMENDING that pltf's 2 ifp motion be denied, and that pltf be given 30 days in which to pay the filing fee of $350.00. Motion referred to Judge England. Within 14 days after being served with these f&r's, any party may file written objections with the court and serve a copy on all parties. (Kastilahn, A)
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(PS) Alfaro v. Marin Doc. 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MIKA ALFARO, 11 Plaintiff, 12 vs. 13 No. CIV S-10-2372 MCE EFB PS LETICIA MARIN, 14 15 16 Defendant. FINDINGS AND RECOMMENDATIONS / Plaintiff, proceeding in pro se, has requested leave to proceed in forma pauperis pursuant 17 to 28 U.S.C. § 1915. This matter was referred to this court by Local Rule 302(c)(21), pursuant 18 to 28 U.S.C. § 636(b)(1). Plaintiff has submitted an affidavit in support of her application to 19 proceed in forma pauperis, as required by 28 U.S.C. § 1915(a)(1). 20 Pursuant to federal statute, a filing fee of $350.00 is required to commence a civil action 21 in federal district court. 28 U.S.C. § 1914(a). The court may authorize the commencement of an 22 action without prepayment of fees and costs or security therefor, by a person who submits an 23 affidavit showing that he is unable to pay such costs or give security therefor. 28 U.S.C. 24 § 1915(a)(1). An in forma pauperis applicant must demonstrate that because of her poverty, she 25 cannot meet court costs and still provide herself and her dependents with the necessities of life. 26 Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004) (affidavit is sufficient if 1 Dockets.Justia.com 1 it represents that the litigant is “unable to pay for the court fees and costs, and to provide 2 necessities for himself and his dependents”) (citing Adkins v. E.I. Du Pont de Nemours & Co., 3 335 U.S. 331, 339-40 (1948); see also, Sears, Roebuck & Co. v. Charles W. Sears Real Estate, 4 Inc., 865 F.2d 22, 23 (2d Cir. 1988) (denying in forma pauperis status where applicant had a net 5 income of approximately $20,000). 6 Plaintiff’s affidavit indicates that, although she is unemployed, she has $120,000.00 in a 7 checking or savings account. Plaintiff further indicates in the affidavit that her gross and take- 8 home pay or wages are $4588.00 per month and that she has received in the past 12 months 9 income from disability or worker’s compensation payments, gifts or inheritances, and “other 10 sources.” Dckt. No. 2. Based on these averments, the court finds that plaintiff has failed to 11 demonstrate that she has insufficient assets to pay the filing fee and costs and provide the 12 necessities of life for herself. 13 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s application to proceed 14 in forma pauperis be DENIED, and that plaintiff be given thirty days in which to pay the filing 15 fee of $350.00. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 18 (14) days after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are 21 advised that failure to file objections within the specified time may waive the right to appeal the 22 District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 23 951 F.2d 1153, 1157 (9th Cir. 1991). 24 DATED: September 7, 2010. 25 26 2