Tonnemacher et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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KATHLEEN TONNEMACHER and
DANIEL TONNEMACHER,

NO. 2:18-CV-3002-TOR

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Plaintiffs,
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v.
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DANIEL H. BRUNNER, Chapter 13
Trustee,

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ORDER ADOPTING REPORT AND
RECOMMENDATION TO CLOSE
FILE AND DENYING PLAINTIFFS’
APPLICATION TO PROCEED IN
FORMA PAUPERIS

Defendant.

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BEFORE THE COURT is a Report and Recommendation issued by

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Magistrate Judge Rodgers, which recommends this Court deny Plaintiffs’

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application to proceed in forma pauperis and close the file. ECF No. 10. The

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Court has reviewed the R&R, the record and files herein, and is fully informed.

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For the reasons discussed below, the Report and Recommendation (ECF No. 10) is

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ADOPTED in full and Plaintiff’s Application to Proceed in Forma Pauperis is

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DENIED.

ORDER ADOPTING THE REPORT AND RECOMMENDATION TO
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BACKGROUND

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On January 3, 2018, the Bankruptcy Appellate Panel of the Ninth Circuit

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transferred Appellant Daniel Tonnemacher’s in forma pauperis application and

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motion to appoint counsel to this Court. ECF No. 1.
On January 8, 2018, the Magistrate Judge denied Plaintiffs’ application to

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proceed in forma pauperis because he was unable to isolate or determine Mr.

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Tonnemacher’s financial means. ECF No. 4 at 1-2. On January 26, 2018,

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Plaintiffs filed a renewed application to proceed in forma pauperis, which the

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Magistrate Judge denied. ECF Nos. 6; 7. The Magistrate Judge found that the

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renewed application only addressed the finances of Kathleen Tonnemacher as the

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Debtor, not Mr. Tonnemacher’s finances as the Appellant. ECF No. 7 at 1. The

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Magistrate Judge also noted that the affidavit failed to state Mr. Tonnemacher’s

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past litigation in its entirety. Id.
On April 5, 2018, the Magistrate Judge denied Plaintiffs’ request to

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reconsider the decision. ECF No. 9 at 1. The Magistrate Judge explained that

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Plaintiffs failed to clearly provide the financial information of Mr. Tonnemacher as

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he is the Appellant. Id. at 2-3. The Magistrate Judge issued an R&R on May 14,

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2018. ECF No. 10. On May 25, 2015, Plaintiffs filed an objection to the R&R and

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Defendant did not timely respond. ECF No. 11.

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//

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DISCUSSION

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Pursuant to Federal Rule of Civil Procedure 72, the district court “must

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determine de novo any part of the magistrate judge’s disposition that has been

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properly objected to” and “may accept, reject, or modify the recommended

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disposition.” Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1)(C).

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Here, Plaintiffs object that Kathleen Tonnemacher had all of her money

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“stolen from her by others,” making both Plaintiffs indigent and not able to pay

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any fees. ECF No. 11 at 1. Plaintiffs allege that the Court has broken laws in

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demanding they provide numerous applications for in forma pauperis. Id.

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Plaintiffs claim that Kathleen Tonnemacher has complied and claim the Court will

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not state in writing its objections. Id.

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The Court finds that the Magistrate Judge properly explained in three orders

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that the Court must be able to determine the finances of Mr. Tonnemacher as he is

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the Appellant. The Magistrate Judge extensively explained in his April 5, 2018

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Order that Mr. Tonnemacher did not state whether the financial data belonged to

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Kathleen Tonnemacher or himself. ECF No. 9 at 3. Plaintiffs did not provide any

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details regarding Social Security benefits after merely stating that the parties

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receive “SS Ben.” Id. In regards to the source and amount of funds, the Plaintiffs

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wrote, “Do not have the documents, but public record to your court.” Id. The

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Magistrate Judge also noted that Plaintiffs allege Mr. Tonnemacher is dependent

ORDER ADOPTING THE REPORT AND RECOMMENDATION TO
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on the applicant for care, but the applicant owes Mr. Tonnemacher $100,000 for

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the past year’s care. Id. The Magistrate Judge acknowledged that the Plaintiffs are

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not trained or sophisticated in legal matters and that one of the parties is aged, frail,

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and dependent. Id. The Magistrate Judge also considered that this proceeding has

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its roots in a bankruptcy proceeding, implying some financial strain. Id. Yet, the

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Magistrate Judge found that these circumstances alone do not permit a court to

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waive a filing fee. Id.

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The Court finds that the Magistrate Judge fully explained why the Court

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cannot grant the application for in forma pauperis and gave the Plaintiffs multiple

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opportunities to renew and correct their application. The Magistrate Judge clearly

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explained the shortcomings of the applications and that the Court needed the

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financial data solely of Mr. Tonnemacher with source and amount of funds.

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Plaintiffs did not provide this information and the Court is then unable to grant in

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forma pauperis status without a completed application. As Plaintiff did not offer

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the full filing fee, show cause why prepayment would be inappropriate, or submit a

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properly completed application to proceed in forma pauperis, the Court agrees

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with the Magistrate Judge that it is proper to close the file.

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ACCORDINGLY, IT IS HEREBY ORDERED:

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1. The Report and Recommendation (ECF No. 10) is ADOPTED in full.

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2. Plaintiff’s Application to Proceed In Forma Pauperis is DENIED.

ORDER ADOPTING THE REPORT AND RECOMMENDATION TO
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The District Court Executive is directed to enter this Order, CLOSE the file,

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and furnish copies to the parties and the Bankruptcy Appellate Panel of the Ninth

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Circuit.

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DATED June 11, 2018.

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THOMAS O. RICE
Chief United States District Judge

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ORDER ADOPTING THE REPORT AND RECOMMENDATION TO
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