Paco v. Myers et al

Filing 9

ORDER AFFIRMING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES re: 6 , 8 . Signed by JUDGE ALAN C KAY on 12/26/2013. [Clerk 's notation: Pursuant to the Findings and Recommendation, docket entry no. 6 : "If Plaintiff wishes to proceed with this action, he must remit the appropriate filing fee within thirty (30) days from the date this Findin gs and Recommendation is acted upon. Failure to do so will result in the automatic dismissal of this action." Filing fee due: $400.00] (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 will be served by first class mail on December 27, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

NATHAN PACO,
Plaintiff,
v.
MARY K. MYERS, ET AL.,
Defendants.

) Civ. No. 13-00701 ACK-RLP
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ORDER AFFIRMING MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO
DENY PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF
FEES
For the following reasons, the Court hereby affirms the
magistrate judge’s Findings and Recommendation to Deny
Plaintiff’s Application to Proceed Without Prepayment of Fees.
BACKGROUND
On December 18, 2013, Plaintiff Nathan Paco
(“Plaintiff”) commenced the instant action and filed an
Application to Proceed in District Court Without Prepaying Fees
or Costs (“Application”), requesting that the Court permit him to
proceed in forma pauperis (“IFP”). On December 19, 2013, the
magistrate judge filed his Findings and Recommendation to Deny
Plaintiff’s Application to Proceed Without Prepayment of Fees
(“F&R”). (Dkt. no. 6.) Plaintiff timely filed his objection to
the F&R on December 23, 2013, along with a First Amended

Application to Proceed in District Court Without Prepaying Fees
or Costs (“Amended Application”). (Dkt. no. 8.)1/
STANDARD
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.” (emphasis omitted)).
Under a de novo standard, a district 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) (citation omitted); see
also United States v. Silverman, 861 F.2d 571, 576 (9th Cir.
1988). The district court need not hold a de novo hearing;
however, it is the court’s obligation to arrive at its own
independent conclusion about those portions of the magistrate

1/

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 Hawaii.
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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). 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
grounds the magistrate judge recommended denying his Application
because Plaintiff’s monthly income exceeds the Department of
Health and Human Services 2013 Poverty Guidelines poverty
threshold of $13,230 for a one-person family in Hawaii. (See F&R
at 2.) Specifically, Plaintiff argues in his objection that,
although he failed to so note in his initial Application, his
wife is his dependent.
Relying on Plaintiff’s original Application, in which
Plaintiff stated that he had no dependents, the magistrate judge
correctly found that, based on Plaintiff’s monthly income of
$1,729, Plaintiff’s annual income exceeds the poverty threshold
for a one-person family in Hawaii. (F&R at 2-3.) Plaintiff

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attached to his opposition to the F&R an Amended Application in
which he states that his wife is also dependent upon his income.
(See Opposition, Ex. A.) He thus appears to argue that the
magistrate judge should have used the poverty threshold for a
two-person family, rather than a single-person household, in
assessing his Application.
Even taking into account Plaintiff’s wife as his
dependent, however, Plaintiff fails to meet the poverty
threshold. The 2013 HHS Poverty Guidelines indicate that the
poverty threshold for a two-person family in Hawaii is $17,850.
2013 HHS Poverty Guidelines, 76 Fed. Reg. 5182-01 (Jan 24, 2013).
Plaintiff states that his monthly income from social security and
other benefits totals $1,729. Thus, even taking into account
Plaintiff’s wife’s financial dependence upon him, Plaintiff’s
annual income is $20,784, and therefore exceeds the poverty
threshold for a two-person household in Hawaii. As such,
Plaintiff’s Amended Application fails to show that he is a pauper
and cannot afford to prepay the costs of initiating the instant
action. See Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335
U.S. 331, 339 (1948); United States v. McQuade, 647 F.2d 938, 940
(9th Cir. 1981). The Court therefore finds that Plaintiff does
not qualify for IFP status under 28 U.S.C. § 1915(a)(1).
CONCLUSION
For the foregoing reasons, the Court AFFIRMS the

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magistrate judge’s Findings and Recommendation that Plaintiff’s
Application to Proceed Without Prepayment of Fees be DENIED.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, December 26, 2013

________________________________
Alan C. Kay
Sr. United States District Judge

Paco v. Myers, et al., Civ. No. 13-00701 ACK-RLP, Order Affirming Magistrate
Judge’s Finding and Recommendation to Deny Plaintiff’s Application to Proceed
Without Prepayment of Fees.

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