Gastelum v. Central Valley Hospitality LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FERNANDO GASTELUM, Case No. 1:21-cv-01079-NONE-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING PLAINTIFF 13 v. FERNANDO GASTELUM’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND 14 CENTRAL VALLEY HOSPITALITY LLC, REQUIRING PLAINTIFF TO PAY FILING FEE IN THIS MATTER 15 Defendants. (ECF No. 5) 16 OBJECTIONS DUE WITHIN TWENTY- 17 ONE DAYS 18 19 Fernando Gastelum (“Plaintiff”), proceeding pro se, filed a complaint in this action on 20 July 12, 2021. (ECF No. 1.) Plaintiff did not pay the filing fee in this action and instead filed an 21 application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. On July 14, 2021, an 22 order issued finding that Plaintiff’s application to proceed in forma pauperis did not demonstrate 23 entitlement to proceed in this action without prepayment of fees. (ECF No. 5.) Plaintiff was 24 ordered to either file a long form application to proceed without prepayment of fees or pay the 25 filing fee within twenty days. (Id.) On July 26, 2021, Plaintiff filed a long form application. 26 (ECF No. 5.) 27 In order to proceed in court without prepayment of the filing fee, a plaintiff must submit an affidavit demonstrating that he “is unable to pay such fees or give security therefor.” 28 1 U.S.C. § 1915(a)(1). The right to proceed without prepayment of fees in a civil case is a 2 privilege and not a right. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 3 506 U.S. 194, 198 n.2 (1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 4 (“permission to proceed in forma pauperis is itself a matter of privilege and not right; denial of 5 in forma pauperis status does not violate the applicant’s right to due process”). A plaintiff need 6 not be absolutely destitute to proceed in forma pauperis and the application is sufficient if it 7 states that due to his poverty he is unable to pay the costs and still be able to provide himself and 8 his dependents with the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 9 331, 339 (1948). Whether to grant or deny an application to proceed without prepayment of fees 10 is an exercise of the district court’s discretion. Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th 11 Cir. 2015). 12 In assessing whether a certain income level meets the poverty threshold under Section 13 1915(a)(1), courts look to the federal poverty guidelines developed each year by the Department 14 of Health and Human Services. See, e.g., Paco v. Myers, No. CIV. 13-00701 ACK, 2013 WL 15 6843057 (D. Haw. Dec. 26, 2013); Lint v. City of Boise, No. CV09-72-S-EJL, 2009 WL 16 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited therein). The 2021 Poverty Guidelines 17 for the 48 contiguous states for a household of two is $17,420, and for a household of four is 18 $26,500.00. 2021 Poverty Guidelines, https://aspe.hhs.gov/poverty-guidelines (last visited 19 August 6, 2021). 20 Plaintiff states that his average income over the past twelve months is $200 per month 21 from employment; and $1265.00 per month from disability (expected to increase to $1,272.00 22 next month). (ECF No. 5 at 1-2.) Plaintiff’s spouse earns employment income of $1,700 per 23 month over the past twelve months, and is expected to increase to $1,806.00 next month. (Id.) 24 Thus Plaintiff claims total income between $37,980 and $39,336. (Id.) This is well above the 25 poverty level for a family of four. Further, Plaintiff provides no information regarding whether 26 his sons, which he claims he supports, aged 22 and 32, receive any income. Plaintiff’s monthly 27 expenses are only listed as $2,350 per month. (Id. at 4-5.) Plaintiff has over $1,000 in checking 1 Based on all of the information provided, Plaintiff has not demonstrated entitlement to 2 | proceed in this action without prepayment of fees and demonstrates he can pay the costs and still 3 | be able to provide himself and his dependents with the necessities of life. If Plaintiff submits 4 | objections to this findings and recommendations, he should further address whether the adult 5 | sons receive any income, whether through employment or disability or otherwise. 6 Accordingly, it is HEREBY RECOMMENDED that: 7 1. Plaintiff Fernando Gastelum’s application to proceed in forma pauperis be 8 DENIED; and 9 2. Plaintiff be ordered to pay the $402.00 filing fee for this action. 10 This findings and recommendations is submitted to the district judge assigned to this 11 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty- 12 | one days of service of this recommendation, Plaintiffs may file written objections to this findings 13 | and recommendations with the court. Such a document should be captioned “Objections to 14 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 15 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 16 | Plaintiffs are advised that failure to file objections within the specified time may result in the 17 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 18 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 IT IS SO ORDERED. OF. nf ee 21 | Dated: _ August 6, 2021 _ OO UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28