Alfaro v. United States of America

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/7/2013 RECOMMENDING that 2 plaintiffs application to proceed in forma pauperis be denied and that plaintiff be given 30 days in which to pay the filing fee of $350.00; Referred to Judge Morrison C. England, Jr.; Objections due within 14 days after being served with these F & R's.(Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIKAELLA C. ALFARO,
Plaintiff,

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vs.
UNITED STATES OF AMERICA,
Defendant.

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FINDINGS AND RECOMMENDATIONS
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No. 2:12-cv-3100-MCE-EFB PS

Plaintiff, proceeding in pro se, has requested leave to proceed in forma pauperis pursuant

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to 28 U.S.C. § 1915.1 Dckt. No. 2. Plaintiff has submitted an affidavit in support of her

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application to proceed in forma pauperis, as required by 28 U.S.C. § 1915(a)(1). Id.

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Pursuant to federal statute, a filing fee of $350.00 is required to commence a civil action

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

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action without prepayment of fees and costs or security therefor, by a person who submits an

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affidavit showing that he is unable to pay such costs or give security therefor. 28 U.S.C.

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§ 1915(a)(1). An in forma pauperis applicant must demonstrate that because of her poverty, she

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cannot meet court costs and still provide herself and her dependents with the necessities of life.

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This matter was referred to the undersigned under Local Rule 302(c)(21), pursuant to 28
U.S.C. § 636(b)(1).
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Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004) (affidavit is sufficient if

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it represents that the litigant is “unable to pay for the court fees and costs, and to provide

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necessities for himself and his dependents”) (citing Adkins v. E.I. Du Pont de Nemours & Co.,

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335 U.S. 331, 339-40 (1948); see also, Sears, Roebuck & Co. v. Charles W. Sears Real Estate,

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Inc., 865 F.2d 22, 23 (2d Cir. 1988) (denying in forma pauperis status where applicant had a net

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income of approximately $20,000).

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Plaintiff’s affidavit indicates that her gross and take-home wages are $5400.00 per

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month, that she receives $1107.00 per month in disability and $4568.00 in gifts or inheritance

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per month, and that she has $75,000.00 in a checking or savings account. Dckt. No. 2. Based on

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those averments, the court finds that plaintiff has failed to demonstrate that she has insufficient

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assets to pay the filing fee and costs and provide the necessities of life for herself.

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s application to proceed

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in forma pauperis be DENIED, and that plaintiff be given thirty days in which to pay the filing

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fee of $350.00.

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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)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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

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“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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

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951 F.2d 1153, 1157 (9th Cir. 1991).

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DATED: January 7, 2013.

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