(PC) Simmons v. Kishbaugh ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN JOSEPH SIMMONS, No. 2:19-cv-1650-TLN-EFB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 C. KISHBAUGH, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel, has requested leave to proceed in 18 forma pauperis pursuant to 28 U.S.C. § 1915. ECF No. 3. Because he has not shown that he is 19 unable to prepay the filing fee for this action, his request should be denied. 20 Pursuant to federal statute, a filing fee of $350.00 is required to commence a civil action 21 in federal district court. 28 U.S.C. § 1914(a). This court also requires a $50 administrative fee. 22 The court may authorize the commencement of an action without prepayment of the fees and 23 costs by a person who submits an affidavit showing that he is unable to pay, i.e., that because of 24 his poverty, he cannot afford the court costs and still provide himself and his dependents with the 25 necessities of life. 28 U.S.C. § 1915(a)(1); Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 26 (11th Cir. 2004) (affidavit is sufficient if it represents that the litigant is “unable to pay for the 27 court fees and costs, and to provide necessities for himself and his dependents”) (citing Adkins v. 28 E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339-40 (1948)). 1 Plaintiff’ s in forma pauperis application reflects that he is financially able to prepay the 2 | filing fee to commence this action. See ECF No. 2 at 2 (listing, among other assets, property 3 || valued in the amount of $42,000,000). Thus, it is apparent from plaintiff’ s application that he has 4 | sufficient funds to prepay the $400 filing fee with funds remaining to provide necessities for 5 || himself and his dependents. 6 Accordingly, it is hereby RECOMMENDED that: 7 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 3) be denied; and 8 2. Plaintiff be directed to pay the $400 filing fee within 30 days of any order adopting 9 these findings and recommendations and that plaintiff be admonished that failure to 10 comply will result in the dismissal of this action. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 13 | after being served with these findings and recommendations, any party may file written 14 | objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 16 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 17 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 18 | DATED: October 16, 2019. 19 tid, PDEA EDMUND F. BRENNAN 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28