Gettings v. Link et al

Filing 4

ORDER signed by Magistrate Judge Carolyn K. Delaney on 01/06/16 ORDERING that no later than 02/03/16, plaintiff shall submit the approripate fees to the Clerk; failure to pay the $400 fees will result in a recommendation that the 2 IFP application be denied and the action be dismissed without prejudice; plaintiff's 3 Motion for lis pendens is DENIED without prejudice. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JIMMY GETTINGS,

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No. 2:15-cv-2688 MCE CKD PS

Plaintiff,
v.

ORDER

CHRIS LINK, et al.,
Defendants.

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Plaintiff is proceeding pro se. Plaintiff, who resides in the Phillippines, has filed an in

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forma pauperis affidavit in which he states that his monthly income is $700 and that his monthly

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expenses are $218.

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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). In addition, a $50.00 general administrative fee for

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civil cases must be paid. 28 U.S.C. § 1914(b). 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 makes

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affidavit that he is unable to pay such costs or give security therefor.” 28 U.S.C. § 1915(a). The

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amount of plaintiff’s income and monthly expenses shows that plaintiff is able to pay the filing

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fee and costs. Thus, plaintiff has made an inadequate showing of indigency. See Alexander v.

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Carson Adult High Sch., 9 F.3d 1448 (9th Cir. 1993); California Men’s Colony v. Rowland, 939

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F.2d 854, 858 (9th Cir. 1991); Stehouwer v. Hennessey, 841 F. Supp. 316, (N.D. Cal. 1994).
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Plaintiff will therefore be granted twenty-eight days in which to submit the appropriate

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fees to the Clerk of the Court. Plaintiff is cautioned that failure to pay the filing and general

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administrative fees in the amount of $400 will result in a recommendation that the application to

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proceed in forma pauperis be denied and the instant action be dismissed without prejudice.

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Plaintiff has filed a motion for court approval of a lis pendens for the property which is the

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subject of the instant action. Under California Code of Civil Procedure section 405.21, court

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approval is a prerequisite to recording of a lis pendens signed by a person acting in propria

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persona. Upon review of the complaint, the court cannot determine on the present record whether

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plaintiff’s claims have merit. The complaint alleges only claims sounding in tort; it is not readily

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apparent that plaintiff has stated a real property claim. 1 Assuming arguendo that plaintiff has

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alleged a real property claim, defendants would be entitled to expungement of the notice of any

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lis pendens where plaintiff’s real property claim is meritless. See Cal. Code Civ. Proc. § 405.32

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(the court “shall order that the notice be expunged if the court finds that the claimant has not

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established by a preponderance of the evidence the probable validity of the real property claim”).

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Id. § 405.32. Under these circumstances, the court does not find a lis pendens is warranted at this

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time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. No later than February 3, 2016, plaintiff shall submit the appropriate fees to the Clerk

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of the Court.
2. Plaintiff’s motion for lis pendens (ECF No. 3) is denied without prejudice.

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Dated: January 6, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 gettings2688.ifp.den.lispend

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A lis pendens is only appropriate where plaintiff alleges a real property claim. See Cal. Code
Civ. Proc. § 405.20.
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