(PC) Gustard v. McCauley et al

Filing 12

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/5/2017 DENYING #10 Motion to Proceed IFP. Plaintiff to pay the $400 filing fee within 30 days of the date of this order. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER IAN GUSTARD, 12 13 No. 2:17-cv-0012-EFB P Plaintiff, v. 14 KAMALA D. HARRIS, et al., 15 ORDER DENYING APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS Defendants. 16 17 Plaintiff, a federal prisoner proceeding without counsel, has requested leave to proceed in 18 forma pauperis pursuant to 28 U.S.C. § 1915.1 ECF No. 10. Because he has not shown that he is 19 unable to prepay the filing fee for this action, his request is denied. 20 Pursuant to federal statute, a filing fee of $350.00 is required to commence a civil action 21 in federal district court. 28 U.S.C. § 1914(a). This court also requires a $50 administrative fee. 22 The court may authorize the commencement of an action without prepayment of the fees and 23 costs by a person who submits an affidavit showing that he is unable to pay, i.e., that because of 24 his poverty, he cannot afford the court costs and still provide himself and his dependents with the 25 necessities of life. 28 U.S.C. § 1915(a)(1); Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 26 (11th Cir. 2004) (affidavit is sufficient if it represents that the litigant is “unable to pay for the 27 28 1 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4). 1 1 court fees and costs, and to provide necessities for himself and his dependents”) (citing Adkins v. 2 E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339-40 (1948)). 3 Plaintiff’s in forma pauperis application reflects that he is financially able to prepay the 4 filing fee to commence this action. He receives deposits of approximately $1200 a month, and 5 specifically earmarks approximately $125 a month (or $1500 a year) for “case expenses.”2 ECF 6 No. 10 at 1, 2. When he commenced this lawsuit at the end of December, he had only $350 in his 7 account, but as of February 24, 2017, his year-to-date commissary purchases had exceeded $800. 8 Id. at 4, 7. He is incarcerated and has no dependents relying on him for financial support. Id. at 9 2. Thus, it is apparent from his application that he has sufficient funds to prepay the $400 filing 10 fee (less than a third of his annual “case expenses” budget), with funds remaining for his 11 discretionary use. See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (district court may 12 consider an inmate’s spending choices, such as between a filing fee and comforts purchased in the 13 prison commissary when assessing his in forma pauperis application and ability to pay a filing 14 fee). 15 Significantly, plaintiff also has $100,000 in individual retirement accounts. ECF No. 10 16 at 2. Plaintiff claims the accounts are “not avail. for withdrawal,” but does not explain why. Id. 17 The court notes that it may still consider these accounts as available funds in assessing plaintiff’s 18 ability to prepay the filing fee even if they are subject to a penalty for early withdrawal. See, e.g., 19 United States v. Konrad, 730 F.3d 343, 349 (3d Cir. 2013) (even with a 10% early withdrawal 20 penalty, liquidating retirement assets would not pose an extreme hardship and court may consider 21 them in determining a litigant’s ability to pay fees). Judging from plaintiff’s in forma pauperis 22 application, however, liquidation of his retirement accounts will not be necessary for plaintiff to 23 prepay the filing fee in this case. Therefore, plaintiff’s retirement accounts will remain available 24 to him to provide for his future life necessities. 25 ///// 26 ///// 27 28 2 The $125 a month figure is derived from plaintiff’s representation that he receives $150$200 every six weeks for case expenses. 2 1 Accordingly, it is hereby ORDERED that plaintiff’s application to proceed in forma 2 pauperis (ECF No. 10) is denied, and within 30 days of the date of this order, plaintiff must pay 3 the $400 filing fee. Failure to comply with this order will result in the dismissal of this action. 4 DATED: July 5, 2017. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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