Katz v. Geithner

Filing 5

FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS re 3 . Signed by JUDGE LESLIE E KOBAYASHI on 1/13/10. (eps ) -- this Court FINDS that Plaintiff does not qualifyas a person who is unable to pay or give security for court fees. The Court therefore RECOMMENDS that the district judge DENY Plaintiff's Application CERTIFICATE OF SERVICEParticipants reg istered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ) ) Plaintiff, ) ) vs. ) ) TIMOTHY F. GEITHNER, ) SECRETARY OF THE TREASURY, ) ) ) Defendant. _____________________________ ) NORMAN KATZ, CIVIL NO. 09-00599 ACK-LEK

FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS On December 16, 2009, Plaintiff Norman Katz ("Plaintiff") filed his Application to Proceed in District Court Without Prepaying Fees or Costs ("Application"). Plaintiff's

Application states that, in the past twelve months, he has received $1,000 per month in social security retirement benefits. Plaintiff is also a licensed certified public accountant and has received "sporadic" income "working as [a] Financial and Operations Principal for broker dealers." [Application at 1.]

In his Request for Appointment of Counsel Under the Civil Rights Act of 1964 ("Request for Counsel"), which he filed concurrently with the Application, Plaintiff stated that this "sporadic" income totaled $15,000.00 for the past twelve months. for Counsel at 6.] Plaintiff also states that he and his wife own a home in Austin which they are currently trying to sell. He states [Request

that they "hope to realize free cash of $210,000.00" from the sale. [Application at 2.] In addition to the $150,000.00

mortgage on that home, Plaintiff identified a total $52,000.00 in joint obligations with his wife. He reports monthly expenses of Plaintiff and his

approximately $4,300, excluding loan payments.

wife have two children whom they support one hundred percent. [Id.] The district court may grant in forma pauperis status to a plaintiff who "is unable to pay such fees or give security" for court fees. 28 U.S.C. § 1915(a)(1). Based on Plaintiff's

income and the significant value of the home that Plaintiff owns with his wife,1 this Court FINDS that Plaintiff does not qualify as a person who is unable to pay or give security for court fees. The Court therefore RECOMMENDS that the district judge DENY Plaintiff's Application. IT IS SO FOUND AND RECOMMENDED.

The Court also notes that Plaintiff reports his wife's monthly income is $8,300.00. [Request for Counsel at 5.] Certainly, if the Court considers his wife's income, Plaintiff would not qualify for in forma pauperis status. See, e.g., Zhu v. Countrywide Realty Co., 148 F. Supp. 2d 1154, 1156 (D. Kan. 2001) ("In a number of cases, courts have found that the income and assets of close family members are relevant to a determination of indigency under 28 U.S.C. § 1915." (citing cases)). The Court, however, need not address whether it is proper to consider Plaintiff's wife's income because Plaintiff's income and assets alone are sufficient to warrant denial of the Application. 2

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DATED AT HONOLULU, HAWAII, January 13, 2010.

/S/ Leslie E. Kobayashi Leslie E. Kobayashi United States Magistrate Judge

NORMAN KATZ V. TIMOTHY F. GEITHNER, ETC; CIVIL NO. 09-00599 ACKLEK; FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS

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