McKinley v. County of Fresno ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DOUGLAS MCKINLEY, II, et al., Case No. 1:21-cv-00754-NONE-SAB 12 Plaintiffs, FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING PLAINTIFF 13 v. DOUGLAS MCKINLEY, II’S APPLICATION TO PROCEED IN FORMA 14 COUNTY OF FRESNO, et al., PAUPERIS AND REQUIRING PLAINTIFF TO PAY FILING FEE IN THIS MATTER 15 Defendants. (ECF Nos. 2, 3) 16 OBJECTIONS DUE WITHIN TWENTY- 17 ONE DAYS 18 19 Douglas McKinley, II, and Joanna McKinley (“Plaintiffs”) filed a complaint in this action 20 on May 10, 2021. (ECF No. 1.) Plaintiff Douglas McKinley did not pay the filing fee in this 21 action and instead filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 22 1915. Plaintiff Joanna McKinley did not file an application to proceed without prepayment or 23 fees nor did she pay the filing fee. Upon review of Plaintiff Douglas McKinley’s application to 24 proceed in forma pauperis, the Court found that it was not sufficiently completed to determine if 25 he is entitled to proceed in this action without prepayment of fees. 26 In order to proceed in court without prepayment of the filing fee, a plaintiff must submit 27 an affidavit demonstrating that he “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). As Plaintiffs were advised in an order on May 12, 2021, in assessing 1 whether a certain income level meets the poverty threshold under Section 1915(a)(1), courts look 2 to the federal poverty guidelines developed each year by the Department of Health and Human 3 Services. See, e.g., Paco v. Myers, No. CIV. 13-00701 ACK, 2013 WL 6843057 (D. Haw. Dec. 4 26, 2013); Lint v. City of Boise, No. CV09-72-S-EJL, 2009 WL 1149442, at *2 (D. Idaho Apr. 5 28, 2009) (and cases cited therein). The 2021 Poverty Guidelines for the 48 contiguous states for 6 a household of two is $17,420.00. 2021 Poverty Guidelines, https://aspe.hhs.gov/poverty- 7 guidelines (last visited May 12, 2021). 8 In his application, Plaintiff Douglas McKinley stated that he receives gross wages of 9 $1,466.00 every other week making his monthly income $2,932.00. Therefore, the Court found 10 that Plaintiff Douglas McKinley’s income is $35,184.00, well above the poverty level for a 11 family of two. Further, Plaintiff Douglas McKinley did not complete the section asking if he 12 receives any other form of income. Additionally, Joanna McKinley also is named as a plaintiff 13 and signed the complaint but did not file an application to proceed in forma pauperis. 14 On May 12, 2021, an order issued requiring Plaintiffs to file a long form application to 15 proceed in forma pauperis in this action or pay the filing fee in full within twenty days. More 16 than twenty days have passed and Plaintiffs have not complied with nor otherwise responded to 17 the May 12, 2021 order. The Court finds that Plaintiff Douglas McKinley has not demonstrated 18 that he is entitled to proceed without prepayment of fees in this action. 19 Accordingly, it is HEREBY RECOMMENDED that: 20 1. Plaintiff Douglas McKinley’s application to proceed in forma pauperis be 21 DENIED; and 22 2. Plaintiffs be ordered to pay the $402.00 filing fee for this action. 23 This findings and recommendations is submitted to the district judge assigned to this 24 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty- 25 one days of service of this recommendation, Plaintiffs may file written objections to this findings 26 and recommendations with the court. Such a document should be captioned “Objections to 27 Magistrate Judge’s Findings and Recommendations.” The district judge will review the 1 | Plaintiffs are advised that failure to file objections within the specified time may result in the 2 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 3 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. FA. ee 6 | Dated: _ June 10, 2021 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28