Collins et al v. Walgreen Co.

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 11/20/2012 recommending that 3 MOTION to PROCEED IN FORMA PAUPERIS filed by Debbie D. Woods and Lynn Collins be DENIED. Referred to Judge Anthony W. Ishii; Objections to F&R due by 12/10/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LYNN COLLINS, on behalf of patients of Dr. )
Terrill E. Brown, M.D., MPH,
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Plaintiff,
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v.
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WALGREEN CO., et al.,
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Defendant.
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_____________________________________ )
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1:12-cv-1780 AWI-BAM
FINDINGS & RECOMMENDATIONS
DENYING PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS
WITHOUT PREJUDICE

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On October 31, 2012, Plaintiff Lynn Collins (“Plaintiff”), proceeding pro se, filed a purported
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class action complaint alleging discrimination, slander, libel, defamation, and misrepresentation by
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Defendant “Walgreen Co.” in the purchase of prescription pills. (Doc. 1). On that same date,
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Plaintiff also filed a motion to proceed in forma pauperis (“IFP”) pursuant to Title 28 of the United
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States Code section 1915. (Doc. 2). For the reasons discussed below, this Court recommends that
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Plaintiff’s application be DENIED.
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I.

Motion to Proceed IFP

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An indigent party may be granted permission to proceed “in forma pauperis” upon submitting
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an affidavit showing his or her inability to pay the required fees. 28 U.S.C. §1915(a).

The

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determination of whether a plaintiff is indigent and therefore unable to pay the filing fee falls within
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the court’s sound discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir.

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1991) (reversed on other grounds). Where the applicant has knowingly provided inaccurate

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information on his or her in forma pauperis application, a court is authorized to dismiss the action

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with prejudice. See Thomas v. Gen’l Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 2002);

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Attwood v. Singletary, 105 F.3d 610, 612-13 (11th Cir. 1997).

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A review of Plaintiff’s IFP Application reveals that she does not receive “any money” from

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any: business, profession or other self-employment; rent, payments, interest or dividends; pensions,

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annuities or life insurance payments; disability or workers’ compensation payments; gifts or

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inheritances; or any other sources. (Doc. 3 at 1.) Next, Plaintiff claims she does not have “any cash

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or checking or savings accounts,” does not own any real estate, stocks, bonds, securities, automobiles

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nor any other thing of value. (Doc. 2 at 2.) Additionally, where the IFP Application requested

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Plaintiff state “employers name and address,” Plaintiff’s response was “we are a Class not currently

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employed or a majority of Patients are not Gainfully employed.” (Doc. 2 at 1). Plaintiff has also

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represented that she does not have any monthly expenses, including housing, transportation, utilities

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or loan payments.

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Plaintiff responded “no” to every question seeking to identify financial or tangible assets.

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Plaintiff also represented she has absolutely no income, property or subsistence and absolutely no

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way to provide for her existence. While Plaintiff stated in her application that she has “attached to

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this document a statement certified by the appropriate institutional officer showing all receipts,

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expenditures, and balances during the last six months for any institutional account in my name,” no

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documentation supporting her claims was attached to Plaintiff’s application. (Doc. 3). Plaintiff’s

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representation, without support, that she has not received a single dollar in the past twelve months

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cannot be squared with the basis of her lawsuit—the purchase of prescription pills. Plaintiff’s lack

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of candor and cavalier treatment of her poverty status in completing her IFP Application

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demonstrates that Plaintiff has not been entirely truthful. As a result, this Court is unable to fully

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consider Plaintiff’s assets and eligibility to proceed without prepayment of fees. Therefore,

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Plaintiff’s application should be DENIED WITHOUT PREJUDICE.

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II.

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As a non-attorney, Plaintiff may appear pro se on her own behalf, but she has no authority

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to appear as a representative for others. Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir.

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1997); see also FED. R. CIV. P. 11(a) (“Every pleading, written motion, and other paper shall be

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signed by at least one attorney of record in the attorney’s original name, or if the party is not

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represented by an attorney, shall be signed by the party.”). Accordingly, because Plaintiff may not

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bring her claims as a class action, the financial status of the class is irrelevant to her future IFP

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application. Plaintiff’s IFP application must set out her financial assets so that the Court may

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properly evaluate her claim to in forma pauperis status.

Class Action Claims

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III.

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Based on the foregoing, the Court RECOMMENDS that:

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Recommendations

(i)

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Plaintiff’s Motion to Proceed In Forma Pauperis (Doc. 3) should be
DENIED without prejudice;

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(ii)

Plaintiff be ORDERED to submit an amended In Forma Pauperis

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Application within thirty (30) days of the date of the adoption of this order

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by the District Judge, or in the alternative, pay the $350.00 filing fee for

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this action. No requests for extension will be granted without a

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showing of good cause. Failure to comply with this order will result in

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a recommendation that this action be dismissed.

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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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fifteen (15) days after being served with these Findings and Recommendations, any party may file

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written objections with the court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge

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will review the magistrate judge’s findings and recommendations pursuant to Title 28 of the United

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States Code section 636(b)(1)(C). The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

November 20, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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