Opinion
Case No. CV07-35-N-EJL.
October 16, 2007
ORDER ON REPORT AND RECOMMENDATION
Before the Court in the above entitled matter is a Motion filed by the Plaintiff, Randall Tetzner, seeking leave to proceed in forma pauperis. (Dkt. Nos. 1). The Court referred the motion to United States Magistrate Judge Larry M. Boyle who, on September 13, 2007, issued a Report and Recommendation ("Report"), recommending that the Court deny the same. (Dkt. No. 6). In response, Mr. Tetzner has filed an objection to the Magistrate's Report, a Motion to Correct, and a second Motion for Leave to Proceed In Forma Pauperis with attached sealed supporting documentation.
Mr. Tetzner also filed a motion to seal the supporting documents, which the Court now grants. (Dkt. No. 8).
Any party may challenge a Magistrate Judge's proposed recommendation by filing written objections within ten days after being served with a copy of the magistrate's Report and Recommendation. 28 U.S.C. § 636(b)(1)(C). The district court must then "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. The district court may accept, reject, or modify in whole or in part, the findings and recommendations made by the magistrate. Id.; see also Fed.R.Civ.P. 72(b).
DISCUSSION
I. Motion to Proceed In Forma Pauperis:
The Report concluded that the Motion to Proceed In Forma Pauperis should be denied for three reasons: First, the pleading failed to state that because of his poverty he is unable to pay the costs of proceeding; second, the statements regarding his income and assets are unclear and provide an insufficient basis for the Court to determine eligibility; and third, the income of Mr. Tetzner's spouse exceeds the poverty threshold. Mr. Tetzner disputes this conclusion by submitting additional documentation of his finances pointing out that 1) the family home and car are owned solely by his spouse; 2) his own disability benefits are garnished; 3) his disability requires expensive medications and costs; 4) the costs of caring for disabled children take up much of the family income; and 5) the SSI benefits received for the children are fluctuating and some amounts may need to be repaid.The Court has reviewed the Report and all of the information and affidavits supplied by Mr. Tetzner contained in the record in this case including both the first and second Motions to Proceed In Forma Pauperis, the sealed supplemental information, and the objection to the report and recommendation. Having done so the Court concludes that the Magistrate Judge's conclusions are well founded and consistent with this Court's review of the record. The sealed documentation has provided this Court with a more complete picture of Mr. Tetzner's financial circumstances, however, the second Motion and supporting documentation yield substantially the same amounts of income and expenses as were presented in the initial Motion.
Proceedings in forma pauperis are governed by 28 U.S.C. § 1915 which allows a court to authorize the commencement of a proceeding without payment of fees or security by "a person who submits an affidavit that includes a statement . . . that the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). The affidavit supporting an in forma pauperis motion is sufficient if it states that the plaintiff, because of his poverty, cannot "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). Such averment must "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) (internal quotation omitted). Motions under § 1915 are left to the sound discretion of the trial court and are granted only in exceptional circumstances. Id.
Based on a de novo review of the record, this Court agrees with the Magistrate Judge's recommendation. Mr. Tetzner's submissions in support of his motions reflect, as noted by the Magistrate Judge, income, bank accounts, and assets which take Mr. Tetzner outside of the types of individuals for whom § 1915 was promulgated. Though the Court does not doubt that Mr. Tetzner's own disability and those of his disabled children require additional costs not incurred by families without such challenges, the Court still concludes that the record does not demonstrate that Plaintiff qualifies for in forma pauperis status. Accordingly the motions will be denied.
Having considered Plaintiff's application, however, the Court finds that given the Plaintiff's financial circumstances the Court will allow Plaintiff sixty days in which to pay the $350.00 filing fee in full. As such, the payment must be made on or before January 21, 2008. Failure to pay a monthly payment may result in dismissal of this case without further notice.
II. Motion to Correct:
Mr. Tetzner has also filed a motion to correct his pleading to reflect the appropriate year of the alleged incident in this matter and the years relating to Kootenai County's prohibition of service animals. The Court has reviewed the motion and finds good cause exists to grant the same. The record shall reflect the changes to the pleading as detailed in the motion.
ORDER
Having conducted a de novo review of the objected to portions of the Report and Recommendation, this Court finds that Magistrate Judge Boyle's Report and Recommendation is well founded in law and consistent with this Court's own view of the evidence in the record. Acting on the recommendation of Magistrate Judge Boyle, and this Court being fully advised in the premises, IT IS HEREBY ORDERED that the Report and Recommendation entered on September 13, 2007, (Dkt. No. 6), should be, and is hereby, INCORPORATED by reference and ADOPTED except as amended herein. THEREFORE IT IS HEREBY ORDERED as follows:
1) Plaintiff's Motions to Proceed In Forma Pauperis (Dkt. Nos. 1, 10) are DENIED. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action on or before January 21, 2008. Failure to pay any payment may result in dismissal of this case without further notice .
2) Plaintiff's Motion to Seal (Dkt. No. 8) is GRANTED.
3) Plaintiff's Motion to Correct (Dkt. No. 9) is GRANTED.