Tolbert v. Foxx

Filing 6

FINDINGS and RECOMMENDATIONS re Plaintiff's 2 Application to Proceed In Forma Pauperis signed by Magistrate Judge Gary S. Austin on 1/4/2015. Objections to F&R's due within fifteen (15) days of service.(Martinez, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:14-cv-01577-KJM-GSA (PS)

OTIS TOLBERT,

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FINDINGS AND RECOMMENDATIONS
RE. PLAINTIFF’S APPLICATION TO
PROCEED IN FORMA PAUPERIS

Plaintiff,

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v.

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(Doc. 2)
ANTHONY FOXX,

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Defendant.

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I.

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INTRODUCTION

Plaintiff Otis Tolbert (“Plaintiff”), proceeding pro se, filed a complaint and an application

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to proceed in forma pauperis, to initiate this action. Docs. 1, 2. As discussed in more detail

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below, the Court finds that Plaintiff has not made the requisite showing, under 28 USC § 1915(a),

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for proceeding in forma pauperis. Accordingly, the undersigned RECOMMENDS that Plaintiff‟s

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application to proceed in forma pauperis be DENIED.

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II.
A.

DISCUSSION

Legal Standard
An indigent party may be granted permission to proceed “in forma pauperis” upon

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submitting an affidavit showing his or her inability to pay the required fees. 28 USC § 1915(a).
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The determination as to whether a plaintiff is indigent and therefore unable to pay the filing fee

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falls within the court‟s sound discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858

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(9th Cir. 1991) (reversed on other grounds).

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“The trial court must be careful to avoid construing the statute so narrowly that a litigant
is presented with a Hobson's choice between eschewing a potentially meritorious claim or
foregoing life's plain necessities.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984),

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citing Potnick v. Eastern State Hospital, 701 F.2d 243, 244 (2d Cir. 1983) (per curiam); Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982). “But, the same even-handed care must be employed to

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assure that federal funds are not squandered to underwrite, at public expense, either frivolous

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claims or the remonstrances of a suitor who is financially able, in whole or in material part, to

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pull his own oar.” Temple, 586 F. Supp. at 850, citing Brewster v. North American Van Lines,

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Inc., 461 F.2d 649, 651 (7th Cir. 1972). “If an applicant has the wherewithal to pay court costs,

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or some part thereof, without depriving himself and his dependents (if any there be) of the
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necessities of life, then he should be required, in the First Circuit's phrase, to „put his money

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where his mouth is.‟” Williams v. Latins, 877 F.2d 65 (9th Cir. 1989), (citing, Temple, 586

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F.Supp. at 851(quoting In re Stump, 449 F.2d 1297, 1298 (1st Cir. 1971) (per curiam)).

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In sum, to prevail on a motion to proceed IFP, a plaintiff need not demonstrate that he is

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completely destitute but must show that, because of his poverty, he cannot pay the filing fee and

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still provide his dependents with the necessities of life. See Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 339–40 (1948). A “„showing of something more than mere hardship must be

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made.‟” Nastrom v. New Century Mortg. Corp., No. 11-cv-1998, 2011 WL 7031499, at *1 (E.D.

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Cal. Dec. 7, 2011) (quoting Martin v. Gulf States Utilities Co., 221 F.Supp. 757, 759 (W.D.

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La.1963)), report and recommendation adopted by, 2012 WL 116563 (E.D. Cal. Jan.12, 2012).

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B.

Plaintiff has not Made the Requisite Showing Under 28 U.S.C. § 1915(a)

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In his IFP application, Plaintiff states that he is employed by the United States Department

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of Transportation, and that his take-home salary is $3309.00.1 Plaintiff further notes that he

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receives Social Security payments of $1500.00 and retirement insurance payments of $1800.00. 2

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Based on Plaintiff‟s representations, the Court can reasonably infer that he receives a monthly

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income of at least $6,609.00. Furthermore, the IFP application indicates that Plaintiff owns four
automobiles, although he does not indicate the model years for the automobiles. Finally, the only

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person dependent on Plaintiff for support is his wife, Nancy L. Tolbert. Based on these
representations, the Court finds that Plaintiff is not entitled to proceed without prepayment of the

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$400.00 filing fee. See, e.g., Said v. Tehama Cnty., No. 2:13-cv-0231 JAM JFM, 2013 WL

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1310679, at *1 (E.D. Cal. Mar. 28, 2013); Himebauch v. Kaweah Delta Med. Ctr., No. 12-cv-

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0587 LJO BAM, 2012 WL 1969057, at *2 (E.D. Cal. May 31, 2012) report and recommendation

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adopted, No. 12-cv-0587 LJO BAM, 2012 WL 2339340 (E.D. Cal. June 19, 2012).

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Plaintiff is further advised that upon payment of the filing fee, the Court will, in due
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course, screen Plaintiff‟s complaint for legal sufficiency. See 28 U.S.C. § 1915(e)(2); Himebauch

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2012 WL 1969057, at *2. The Clerk of Court will issue a summons in this matter only after the

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complaint has been screened and deemed appropriate for service. Plaintiff is advised that the

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Court must dismiss a case if it determines that the action is frivolous or malicious, fails to state a

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claim upon which relief may be granted, or seeks monetary relief against a defendant who is

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Plaintiff does not specify whether his take-home salary of $3309.00 is paid on a monthly or bimonthly basis.
Plaintiff does not specify the frequency of these payments but the wording of the application suggests that these
payments are received on a monthly basis.
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immune from such relief. 28 U.S.C. § 1915(e)(2); see also Omar v. Sea-Land Service, Inc., 813

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F.2d 986, 991 (9th Cir. 1987); Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981).

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III.

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RECOMMENDATION

Based on the foregoing, the Court RECOMMENDS that Plaintiff‟s application to proceed

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in forma pauperis be denied and Plaintiff be required to submit the filing fee of $400.00. These

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findings and recommendations are submitted to the Honorable Kimberly J. Mueller, pursuant to

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the provisions of 28 U.S.C. § 636(b)(l). Within fifteen (15) days after being served with these

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findings and recommendations, Plaintiff may file written objections with the Court. The

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document should be captioned “Objections to Magistrate Judge's Findings and
Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
1991).

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IT IS SO ORDERED.
Dated:

January 4, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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