McKinley v. County of Fresno et al

Filing 5

ORDER ADOPTING 4 Findings and Recommendations in Part and DENYING 2 Application to Proceed In Forma Pauperis, signed by District Judge Dale A. Drozd on 7/14/2021. Motion for IFP due within TWENTY-ONE DAYS. (Attachments: # 1 IFP Application Non-Prisoner (Long Form))(Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DOUGLAS MCKINLEY, II, et al.,

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No. 1:21-cv-00754-NONE-SAB

Plaintiffs,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS IN PART AND
DENYING APPLICATION TO PROCEED
IN FORMA PAUPERIS

v.

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COUNTY OF FRESNO, et al.,

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(Doc. Nos. 2, 4)
Defendants.

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TWENTY-ONE DAY DEADLINE
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Plaintiffs Douglas McKinley, II, and Joanna McKinley filed the complaint commencing

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18 this action on May 10, 2021. (Doc. No. 1.) Along with the complaint, one of the plaintiffs filed
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19 an application to proceed in forma pauperis in this action. The matter was referred to a United

20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On June 10, 2021, the assigned magistrate judge issued findings and recommendations,

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22 recommending that the application to proceed in forma pauperis be denied. (Doc. No. 4.) The
23 findings and recommendations were served on plaintiffs and contained notice that any
24 objections to thereto were to be filed within twenty-one (21) days from the date of service. (Id.
25 at 3–4.) The period for filing objections has passed and no objections have been filed.
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Although the magistrate judge indicated that it was Douglas McKinley who filed the
27 application, a comparison of the signatures in the complaint against the signature in the
application suggests it may have been Joanna McKinley who signed the application. (Compare
28 Doc. No. 1 at 6 with Doc. No. 2 at 2)
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted

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2 a de novo review of this case. “To satisfy the requirements of 28 U.S.C. § 1915, applicants
3 must demonstrate that because of poverty, they cannot meet court costs and still provide
4 themselves, and any dependents, with the necessities of life.” Soldani v. Comm’r of Soc. Sec.,
5 Case No. 1:19-cv-00040-JLT, 2019 WL 2160380, at *1 (E.D. Cal. Jan. 31, 2019). Many courts
6 look to the federal poverty guidelines set by the United States Department of Health and Human
7 Services as a guidepost in evaluating in forma pauperis applications. See Martinez v. Kristi
8 Kleaners, Inc., 364 F.3d 1305, 1307 n.5 (11th Cir. 2004); Boulas v. United States Postal Serv.,
9 No. 1:18-cv-01163-LJO-BAM, 2018 WL 6615075, at *1 (E.D. Cal. Nov. 1, 2018) (applying
10 federal poverty guidelines to in forma pauperis application). However, the poverty guidelines
11 should not be considered in a vacuum; rather, courts are to consider income in the context of
12 overall expenses and other factors, including savings and debts. See, e.g., Boulas, 2018 WL
13 6615075, at *1 n.1 (denying in forma pauperis where income exceeded expenses); Lintz v.
14 Donahoe, No. 2:14-CV-0224-JAM-DAD, 2014 WL 1338782, at *1 (E.D. Cal. Apr. 2, 2014)
15 (recommending denial of in forma pauperis status where plaintiff had $3,000 in savings even
16 though expenses exceeded income). Where the applicant’s income exceeds expenses by a
17 notable amount, it may be appropriate to deny in forma pauperis status. Lopez-Ruiz v. Tripler
18 Army Med. Ctr.’s Postdoctoral Fellowship in Clinical Psychology, No. CV. 11-0066
19 JMS/BMK, 2011 WL 486952, at *1 (D. Haw. Feb. 4, 2011) (denying in forma pauperis status
20 where the applicant’s income was $21,600, with possibly one dependent, which was above the
21 relevant federal poverty guideline of $16,760, and the applicant’s income exceeded their
22 monthly expenses).
Here, two plaintiffs signed the complaint: Joanna McKinley and Douglas McKinley, II.

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24 (Doc. No. 1 at 6.)2 However, there is only one application to proceed in forma pauperis before
25 the court. (Doc. No. 2.) The application states that the filer has $1,466 in biweekly take-home
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As the magistrate judge noted in a previous order (Doc. No. 3 at 2 n.1), because plaintiffs are
proceeding pro se, they cannot represent their children without retaining counsel. If this
28 complaint proceeds, plaintiffs’ children will not be parties to the lawsuit without a lawyer.
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1 pay. (Id. at 1.) Annualized over a 52-week year, that amounts to $38,116 annual income.3 As
2 the findings and recommendations indicate, this income is substantially greater than the poverty
3 threshold for a household of two under the 2021 Poverty Guidelines for the 48 contiguous
4 states, 2021 Poverty Guidelines, https://aspe.hhs.gov/poverty-guidelines (last visited July 13,
5 2021) ($17,420 threshold).
In addition, the application is incomplete. First, only one plaintiff has filed the

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7 application. Both plaintiffs must provide the information to the court. Second, it does not
8 indicate whether either plaintiff has received any other income in the last twelve months. Third,
9 the application also does not clearly show whether plaintiffs have any debt or other obligations
10 that offset the income. Thus, the court is unable to determine the extent to which the reported
11 income is offset by expenses or debts.
Plaintiffs were informed by the magistrate judge on May 12, 2021, that they should both

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13 submit long form applications to proceed in forma pauperis and warned them that if they were
14 unwilling to do so, they would be required to pay the required filing fee. (Doc. No. 3 at 2.) As
15 a result, based on the information before it, the court concludes that the magistrate judge’s
16 recommendation to deny the application is generally supported by the record and by proper
17 analysis. That recommendation will be adopted with the modification that the denial shall be
18 without prejudice to plaintiffs renewing their application by both filing complete long form
19 applications to proceed in forma pauperis.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

The findings and recommendations, filed June 10, 2021 (Doc. No. 4), are
ADOPTED IN PART;

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2.

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Plaintiff Joanna McKinley’s application to proceed in forma pauperis, filed May
10, 2021 (Doc. No. 2), is DENIED, WITHOUT PREJUDICE;

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The court notes that the findings and recommendations slightly underestimated plaintiff’s
28 annual income by multiplying plaintiff’s bi-weekly pay by 24 instead of 26.
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to proceed in forma pauperis;

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The clerk of court shall send to plaintiffs two copies of the long-form application

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Within twenty-one (21) days of the date of entry of this order, plaintiffs shall

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either (1) pay the four hundred and two dollar ($402.00) filing fee in this matter

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or (2) each file a long-form application to proceed in forma pauperis; and

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If plaintiffs fail to comply with this order, this matter shall be dismissed for
the failure to pay the filing fee.

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IT IS SO ORDERED.
Dated:

July 14, 2021
UNITED STATES DISTRICT JUDGE

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