Smith v. City of Fresno ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CANDACE SMITH, Case No. 1: 21-cv-01613-NONE-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING 13 v. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND 14 CITY OF FRESNO, et al., REQUIRING PLAINTIFF TO PAY THE FILING FEE 15 Defendants. (ECF No. 3) 16 OBJECTIONS DUE WITHIN FOURTEEN 17 DAYS 18 19 Plaintiff Candace Smith filed a complaint in this action on November 4, 2021. (ECF No. 20 1.) Plaintiff did not pay the filing fee in this action and instead filed an application to proceed in 21 forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 3.) However, the Court found 22 Plaintiff’s application did not contain sufficient information for the Court to determine if she is 23 entitled to proceed in this action without prepayment of fees. Specifically, the application shows 24 Plaintiff denies any amount of income from any source in the past 12 months, denies having any 25 cash or money in a bank account, and denies owning anything of value. In cases such as this 26 where the Court finds Plaintiff did not provide the Court with sufficient information as requested 27 in the application, the Court prefers to utilize a long form application in order to guide applicants in providing more accurate information. On November 8, 2021, the Court ordered Plaintiff to 1 either file a long form application to proceed without prepayment of fees or pay the filing fee. 2 (ECF No. 4.) Plaintiff was provided twenty-one (21) days to file a long form application. 3 Plaintiff was warned that the failure to comply with the order would result in this action being 4 dismissed for failure to pay the filing fee and failure to comply with a court order. (Id. at 2.) 5 Plaintiff did not file a long form application and the deadline to do so has expired. 6 In order to proceed in court without prepayment of the filing fee, a plaintiff must submit 7 an affidavit demonstrating that he “is unable to pay such fees or give security therefor.” 28 8 U.S.C. § 1915(a)(1). The right to proceed without prepayment of fees in a civil case is a 9 privilege and not a right. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 10 506 U.S. 194, 198 n.2 (1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 11 (“permission to proceed in forma pauperis is itself a matter of privilege and not right; denial of 12 in forma pauperis status does not violate the applicant’s right to due process”). A plaintiff need 13 not be absolutely destitute to proceed in forma pauperis and the application is sufficient if it 14 states that due to his poverty he is unable to pay the costs and still be able to provide himself and 15 his dependents with the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 16 331, 339 (1948). Whether to grant or deny an application to proceed without prepayment of fees 17 is an exercise of the district court’s discretion. Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th 18 Cir. 2015). 19 Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s application to proceed 20 in forma pauperis be DENIED and Plaintiff be ordered to pay the $402.00 filing fee for this 21 action within fourteen (14) days of the order adopting. 22 This findings and recommendations is submitted to the district judge assigned to this 23 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 24 (14) days of service of this recommendation, Plaintiff may file written objections to this findings 25 and recommendations with the court. Such a document should be captioned “Objections to 26 Magistrate Judge’s Findings and Recommendations.” The district judge will review the 27 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The 1 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 2 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 IT IS FURTHERED ORDERED that if Plaintiff files a long form application within the 4 | fourteen (14) day objection period that demonstrates entitlement to proceed without payment of 5 | fees, the Court shall vacate this findings and recommendations as moot. 6 7 IT IS SO ORDERED. OF a Se g | Dated: _December 3, 2021 _ ef 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28