Augusta v. Block by Block, LLC et al
Filing
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ORDER DENYING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND ORDER ADOPTING THE FINDINGS AND RECOMMENDATION re 5 . Signed b y JUDGE LESLIE E. KOBAYASHI on 1/30/2013. ~ Related docs: Application to Proceed In Forma Pauperis: doc no. 3 . Plaintiff's Objections: doc nos. 6 , 7 . AS PURSUANT TO THE FINDINGS AND RECOMMENDATION, doc. no. 5 : "If Pl aintiff wishes to proceed with this action, he must remit the appropriate filing fee within thirty (30) days from the date that this Findings and Recommendation is acted upon by the district court. Failure to do so will result in the automatic dismi ssal of this action." ~ (afc) CERTIFICATE OF SERVICEParticipants registered 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
MICHAEL P. AUGUSTA,
)
)
Plaintiff,
)
)
vs.
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)
BLOCK BY BLOCK, LLC,
)
)
)
Defendant.
_____________________________ )
CIVIL NO.
12-00664 LEK
ORDER DENYING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF’S APPLICATION TO
PROCEED WITHOUT PREPAYMENT OF FEES
AND ORDER ADOPTING THE FINDINGS AND RECOMMENDATION
On December 18, 2012, the magistrate judge filed his
Findings and Recommendation to Deny Plaintiff’s Application to
Proceed Without Prepayment of Fees (“F&R”).
[Dkt. no. 5.]
On
December 31, 2012, Plaintiff Michael P. Augusta (“Plaintiff”),
filed his objections to the F&R (“Objections”).
The Court finds
this matter suitable for disposition without a hearing pursuant
to Rules LR7.2(d) and LR74.2 of the Local Rules of Practice of
the United States District Court for the District of Hawai`i
(“Local Rules”).
After careful consideration of the Objections
and the relevant legal authority, the Court HEREBY DENIES
Plaintiff’s Objections and ADOPTS the magistrate judge’s F&R for
the reasons set forth below.
BACKGROUND
On December 10, 2012, Plaintiff filed a Complaint
alleging that Block By Block, LLC discriminated against him based
on his race, age, and sex.
Plaintiff alleges that Defendant
discriminated against him by terminating his employment while a
younger female employee with less experience was not terminated.
Plaintiff attached to his Complaint a right-to-sue letter from
the Equal Employment Opportunity Commission dated September 13,
2012.
I.
IFP Motion and F&R
On December 10, 2012, Plaintiff filed a motion for
leave to proceed in forma pauperis (“IFP Motion”).
[Dkt. no. 3.]
In the F&R, the magistrate judge found that, based upon the
information submitted by Plaintiff in his IFP Motion, Plaintiff’s
income exceeds the $12,860 poverty threshold for a single
individual in Hawai`i.
[F&R at 3 (citing Annual Update of the
HHS Poverty Guidelines, 77 Fed. Reg. 4034–02 (Jan. 26, 2012)).]
As such, the magistrate judge found that Plaintiff does not
qualify as a person who is unable to pay or give security for
court fees pursuant to 28 U.S.C. § 1915(a)(1), and recommended
that Plaintiff’s IFP Motion be denied.
II.
[Id.]
Objections
Plaintiff objects to the F&R presumably on the grounds
that, because of his existing debts and monthly expenses, he is
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unable to afford the fees associated with filing his employment
discrimination suit.
Along with his Objections and Amended IFP,
Plaintiff submits additional documentation regarding his current
debts and monthly expenses.
STANDARD
Any party may file objections to a magistrate judge’s
findings and recommendation within fourteen days after the party
is served with a copy of the findings and recommendations.
28
U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b); Local Rule LR74.2.
When a party objects to a magistrate judge’s findings
or recommendations, the district court must review de novo those
portions to which the objections are made and “may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”
28 U.S.C. §
636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673
(1980); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th
Cir. 2003) (en banc) (“[T]he district judge must review the
magistrate judge's findings and recommendations de novo if
objection is made, but not otherwise.”).
Under a de novo standard, this Court reviews “the
matter anew, the same as if it had not been heard before, and as
if no decision previously had been rendered.”
Freeman v.
DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United States
v. Silverman, 861 F.2d 571, 576 (9th Cir.1 988).
The district
court need not hold a de novo hearing; however, it is the court’s
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obligation to arrive at its own independent conclusion about
those portions of the magistrate judge’s findings or
recommendation to which a party objects.
United States v.
Remsing, 874 F.2d 614, 616 (9th Cir. 1989).
“[I]n providing for a ‘de novo determination’ rather
than de novo hearing, Congress intended to permit whatever
reliance a district judge, in the exercise of sound judicial
discretion, chose to place on a magistrate’s proposed findings
and recommendations.”
Raddatz, 447 U.S. at 676
(citation
omitted); accord Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir.
2004) (citing Raddatz).
Pursuant to Local Rule 74.2, this Court
“may consider the record developed before the magistrate judge,”
but the Court must make its “own determination on the basis of
that record.”
DISCUSSION
Plaintiff objects to the magistrate judge’s F&R on the
basis that he cannot afford to pay the fees associated with the
filing of his employment discrimination suit.
This Court may
authorize the commencement of a suit without prepayment of fees
by a person who submits an affidavit that the person is unable to
pay such fees pursuant to 28 U.S.C. § 1915(a)(1).
“[A]n
affidavit is sufficient which states that one cannot because of
his poverty pay or give security for the costs and still be able
to provide himself and dependents with the necessities of life.”
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Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331, 339
(1948)(quotations omitted).
As the magistrate judge stated, in determining whether
to grant an application to proceed without prepayment of fees,
the Court must determine whether the applicant’s yearly income
surpasses the poverty threshold.
The Department of Health and
Human Services (“HHS”) 2013 Poverty Guidelines indicate that the
poverty threshold for a one-person family in Hawai`i is $13,230.
Annual Update of the HHS Poverty Guidelines, 77 Fed. Reg. 4034–02
(Jan. 24, 2013).
Plaintiff’s Objections state that he is not employed,
and that he now receives $1,586 per month in Social Security
payments, up from the $1,562 per month that he reported to the
magistrate judge.
income of $19,032.
[Objections at 6.]
This results in an annual
Plaintiff also states that he owns real
estate worth approximately $350, and that he received weekly
unemployment insurance payments of $216 through December 2012.
[Objections, Exh. A (Revised IFP Application).]1
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As such,
Plaintiff submitted Supplemental Objections to the F&R on
January 28, 2013, [dkt. no. 7,] indicating that his unemployment
benefits have been extended to March 3, 2013, and that he will be
receiving $217.00 per week until then. While the Court
appreciates Plaintiff’s forthrightness and thoroughness with
respect to the instant Objections, the Court notes that
Plaintiff’s Supplemental Objections are not authorized under Rule
LR74.1 of the Local Rules of Practice of the United States
District Court for the District of Hawai`i. Even if the Rules
permitted his submission, however, it would only serve to further
(continued...)
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Plaintiff’s annual income clearly exceeds the poverty threshold
for an individual in Hawai`i.
The Court acknowledges that
Plaintiff’s numerous monthly expenses and his stated debts
consume much of his monthly income, and the Court is extremely
sympathetic to his arguments.
Nevertheless, Plaintiff’s
Objections and Revised IFP Application do not establish that he
cannot both pay the costs of litigating this case “and still be
able to provide himself . . . with the necessities of life.”
See
Adkins, 335 U.S. at 339 (internal quotation marks omitted).
The Court therefore DENIES Plaintiff’s Objections to
the F&R.
CONCLUSION
On the basis of the foregoing, the Court HEREBY DENIES
Plaintiff’s Objections to the Magistrate Judge’s Findings and
Recommendation, filed December 31, 2012, and ADOPTS the
magistrate judge’s Findings and Recommendation to Deny
Plaintiff’s Application to Proceed Without Prepayment of Fees,
filed December 18, 2012.
IT IS SO ORDERED.
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(...continued)
reenforce this Court’s finding that, unfortunately, Plaintiff has
cannot demonstrate he meets the requisite poverty threshold.
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DATED AT HONOLULU, HAWAII, January 30, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MICHAEL P. AUGUSTA V. BLOCK BY BLOCK, LLC; CIVIL NO. 12-00664
LEK-RLP; ORDER DENYING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE
JUDGE’S FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND ORDER
ADOPTING THE FINDINGS AND RECOMMENDATION
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