Iwaniszek v. Pride Transport, Inc.

Filing 13

ORDERAdopting Report and Recommendations re 6 Report and Recommendation. IT IS FURTHER ORDERED that 1 plaintiff's application to proceed in forma pauperis be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that plaintiff shall pay the filing fee within 14 days of this order. Signed by Judge James C. Mahan on 3/16/2020. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

STEVEN J. IWANISZEK,

8
9
10
11

Case No. 2:17-CV-2918 JCM (BNW)
Plaintiff(s),

ORDER

v.
PRIDE TRANSPORT, INC.,
Defendant(s).

12
13
14

Presently before the court is Magistrate Judge Leen’s report and recommendation
(“R&R”). (ECF No. 6). No objections have been filed and the time to do so has passed.

15

Judge Leen recommends denying pro se plaintiff Stephen Iwaniszek’s application to

16

proceed in forma pauperis. Id. at 1 (referring to ECF No. 1). The Ninth Circuit has recognized

17

that “there is no formula set forth by statute, regulation, or case law to determine when someone

18

is poor enough to earn IFP status.” Escobedo v. Applebees, 787 F. 3d 1226, 1235 (9th Cir.

19

2015). An applicant need not be absolutely destitute to qualify for a waiver of costs and fees, but

20

he must demonstrate that because of his poverty he cannot pay those costs and still provide

21

himself “with the necessities of life.” Rowland v. Cal Men’s Colony, 506 U.S 194, 203 (1993)

22

(quoting Adkins v. E.I DuPont deNemours & Co., 335 U.S 331, 339 (1948)). Here, plaintiff’s

23

affidavit states that he is currently employed and receives $650-$1,000 in gross wages per week

24

(approximately $33,800-$52,000 per year). (ECF No. 1). Plaintiff also has $2,600 in cash or in

25

a bank account and over $37,000 in valuable items. Id. Additionally, his income and assets

26

exceed his monthly living expenses and he listed no other debts or financial obligations. Id.

27

Judge Leen recommends his in forma pauperis application be denied because he has sufficient

28

assets to pay the cost of filing. (ECF No. 6).

James C. Mahan
U.S. District Judge

1

This court “may accept, reject, or modify, in whole or in part, the findings or

2

recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely objects

3

to a magistrate judge’s report and recommendation, then the court is required to “make a de novo

4

determination of those portions of the [report and recommendation] to which objection is made.”

5

28 U.S.C. § 636(b)(1).

6

Where a party fails to object, however, the court is not required to conduct “any review at

7

all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149

8

(1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a

9

magistrate judge’s report and recommendation where no objections have been filed. See United

10

States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

11

employed by the district court when reviewing a report and recommendation to which no

12

objections were made).

13

Nevertheless, this court conducted a de novo review to determine whether to adopt the

14

recommendation of the magistrate judge. Upon reviewing the recommendation and attendant

15

circumstances, this court finds good cause appears to adopt the magistrate judge’s findings in

16

full.

17

Accordingly,

18

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Judge Leen’s R&R

19

(ECF No. 6) be, and the same hereby is, ADOPTED.
IT IS FURTHER ORDERED that plaintiff’s application to proceed in forma pauperis

20
21

(ECF No. 1) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that plaintiff shall pay the filing fee within 14 days of this

22
23
24
25
26

order.
DATED March 16, 2020.
__________________________________________
UNITED STATES DISTRICT JUDGE

27
28
James C. Mahan
U.S. District Judge

-2-