Opinion
Case No. 1:18-cv-01026-AWI-SAB
08-02-2018
ANNE KIMIKO AYERS, Plaintiff, v. FELLOWSHIP OF CHRISTIAN ATHLETES, et al., Defendants.
FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF No. 3, 5) OBJECTIONS DUE WITHIN FOURTEEN DAYS
On July 30, 2018, Plaintiff Anne Kimiko Ayers ("Plaintiff") filed a civil rights complaint in this action pursuant to 42 U.S.C. § 1983. (ECF No. 2.) Along with her complaint, Plaintiff filed an application to proceed in forma pauperis without prepayment of the filing fee. (ECF No. 3.) Upon review of Plaintiff's application, the Court found that it did not demonstrate Plaintiff was unable to pay the filing fee so an order issued requiring Plaintiff to file a long form application to proceed in forma pauperis to address her household income and expenses. (ECF No. 4.) On August 1, 2018, Plaintiff filed a long form application to proceed without prepayment of fees. (ECF No. 5.)
Pursuant to 28 U.S.C. § 1915, federal courts can authorize the commencement of any suit without prepayment of fees by a person who submits an affidavit demonstrating that the person is unable to pay such fees. 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.' " Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). "When a claim of poverty is made under section 1915 'it is proper and indeed essential for the supporting affidavits to state the facts as to affiant's poverty with some particularity, definiteness and certainty.' " United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)).
In the application to proceed without prepayment of fees, Plaintiff states that she receives income of $132.00 per month which she will be continuing to receive into September 2018. She has $1,300.00 in her checking account and expenses of $20.00 per month for transportation and $20.00 per month for recreation for a total monthly expense of $40.00. Plaintiff states that she will begin college in the fall and will be looking for employment after she checks into her dorm. It would appear from the application filed that Plaintiff's living expenses are paid by her parents. Plaintiff has not addressed her household income and expenses as directed by the July 31, 2018 order. Plaintiff has not demonstrated that that she is unable to pay the filing fee in this matter.
Review of Plaintiff's application to proceed in forma pauperis demonstrates that she has the ability to pay the $400.00 filing fee in this action. The Court finds that Plaintiff is not eligible to proceed in forma pauperis under 28 U.S.C. § 1915.
Accordingly, it is HEREBY RECOMMENDED that Plaintiff's application to proceed in forma pauperis be DENIED.
These findings and recommendations are submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within fourteen (14) days of service of this recommendation, any party may file written objections to these findings and recommendations with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. Dated: August 2 , 2018
/s/_________
UNITED STATES MAGISTRATE JUDGE