Fox v. Commissioner of Social Security

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/9/12 ORDERING that the Clerk randomly select a district judge to review and resolve these proposed findings and recommendations. This case is randomly assigned to District Judge William B. Shubb. The New Case Number is: 2:12-cv-01187 WBS KJN (SS). It is RECOMMENDED that Plaintiff's 2 application to proceed in forma pauperis be denied. Plaintiff be provided 21 days following resolution of these fin dings and recommendations within which to pay the initial filing fee of $350.00. Motion referred to Judge William B. Shubb. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES FOX,

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Plaintiff,

No. 2:12-cv-01187 KJN

v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,

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Defendant.

ORDER and
FINDINGS AND RECOMMENDATIONS

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/
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Plaintiff, who is represented by an attorney, filed his complaint without paying the

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applicable filing fee.1 Instead, plaintiff filed an application to proceed in forma pauperis (Dkt.

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No. 2). Plaintiff’s declaration in support of his application to proceed in forma pauperis reflects

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that plaintiff is not employed, but is paid, or was paid until recently, the following in “Take home

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amounts”:

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•

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$343 per month for life, as a result of plaintiff’s “Boeing Corp.
Retirement”;

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•

$118 per month for life, as a result of plaintiff’s “EBASCO Corp.

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This case was referred to the undersigned pursuant to Eastern District of California
Local Rule 302(c)(15) and 28 U.S.C. § 636(c).
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Retirement”;

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•

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$1,382 per month, until April 2012, in Social Security “early retirement”;
and

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$1,520 in Social Security disability payments.

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Additionally, plaintiff declares that he maintains an average balance of approximately $2,000 in

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his checking or savings account. He further declares that he owns one vehicle outright, is making

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payments on a 2005 model year vehicle, and is making payments on a 2004 model year mobile

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home. Finally, he declares that his spouse is employed and is the “primary wage earner.”

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Pursuant to federal statute, a filing fee of $350 is required to commence a civil

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action in federal district court. 28 U.S.C. § 1914(a). The court may authorize the

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commencement of an action “without prepayment of fees and costs or security therefor” by a

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person that is unable to pay such fees or provide security therefor. 28 U.S.C. § 1915(a)(1).

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Plaintiff’s declaration of the amount of his earnings and money on hand demonstrates that

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plaintiff is able to pay the filing fee and costs or provide security therefor. Thus, plaintiff has

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made an inadequate showing of indigency with respect to payment of the initial filing fee. See

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Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995); Alexander v. Carson Adult High Sch., 9

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F.3d 1448, 1449 (9th Cir. 1993); cf. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331,

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339 (1948).

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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly
select a district judge to review and resolve these proposed findings and recommendations.

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It is FURTHER RECOMMENDED that:

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1.

Plaintiff’s application to proceed in forma pauperis (Dkt. No. 2) be denied.

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2.

Plaintiff be provided twenty-one days following resolution of these

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findings and recommendations within which to pay the initial filing fee of $350.00.
These findings and recommendations are submitted to the United States District
Judge to be assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
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fourteen 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. Id.; see also E. Dist. Local Rule

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304(b). Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any response to the objections shall be filed with the court and served on

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all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d).

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Failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d

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1153, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED AND RECOMMENDED.
DATED: May 9, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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