(PC) Hill v. Ng ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CYMEYON HILL, No. 2:22-cv-2053 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 XIO NG, 15 Defendant. 16 17 Plaintiff is a civil detainee proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. 19 I. Procedural and Factual Background 20 On June 5, 2023, plaintiff was ordered to supplement his motion for leave to proceed in 21 forma pauperis (IFP) because deposits to his trust account suggested that his claim of having 22 received no money from any source over the past twelve months was not accurate. ECF No. 6. 23 Specifically, the undersigned found that 24 [t]he application to proceed in forma pauperis represents that plaintiff has no cash or assets and in the last twelve months has not received 25 any money from a business, profession, or self-employment; stocks, bonds, or royalties; rent payments; pensions, annuities, or life 26 insurance payments; or federal or state welfare payments, social security, or other government sources. ECF No. 2. However, 27 plaintiff’s trust account statement, which was filed in several other cases in this district, reflects that as of October 20, 2022, plaintiff’s 28 account has a balance of $5,221.90, with encumbrances of $565.00, 1 for an available balance of $4,656.90.2 See Hill v. Qui, No. 2:22- cv-1821 WBS EFB (E.D. Cal.), ECF No. 6 at 1; Hill v. Martini, No. 2 2:22-cv-1603 KJM AC (E.D. Cal.), ECF No. 10; Hill v. Agonone, No. 2:22-cv-1845 TLN JDP (E.D. Cal.), ECF No. 4 at 1. It shows 3 that his initial balance on April 1, 2022, was $3,818.37, and that plaintiff received the following deposits: (1) $1,200.00 on April 20, 4 2022, labeled as a special deposit; (2) $600.00 and $51.47 on April 20, 2022, labeled as miscellaneous income; (3) $1,851.47 on May 5 20, 2022, labeled as TRACS transfer in; (4) $200.00 on June 14, 2022, labeled as JPAY; and (5) $100.00 on September 20, 2022, 6 labeled as a voluntary withdrawal. Id. 7 Id. at 1-2 (footnote omitted). Plaintiff was ordered “to file further briefing addressing: 1) the 8 sources of the funds for the initial balance in his inmate trust account on April 1, 2022, and 9 whether he receives income regularly from any of those sources; 2) the sources of the deposits to 10 his inmate trust account listed above and whether he receives income regularly from any of these 11 sources; and 3) whether he has any recurring expenses for any necessities of life.” Id. at 2. 12 Plaintiff has now responded to the order. ECF No. 7. In his response, plaintiff states that during 13 a settlement conference he was told by a judge from the United States District Court for the 14 Northern District of California that Attorney General John Falconer would resolve all of his filing 15 fees. Id. at 1. The response provides no further details and does not address any of the matters 16 identified in the June 5, 2023 order. Id. at 1-2. 17 II. Legal Standard for In Forma Pauperis Status 18 Section 1915(a)(1) provides, in relevant part, that “any court of the United States may 19 authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or 20 criminal, or appeal therein, without prepayment of fees or security therefor, by a person who 21 submits an affidavit that includes a statement of all assets such [person1] possesses that the person 22 is unable to pay such fees or give security therefor.” “[A] plaintiff seeking IFP status must allege 23 poverty ‘with some particularity, definiteness and certainty.’” Escobedo v. Applebees, 787 F.3d 24 1 “Person” has been substituted for “prisoner” because it appears “that the use of the word 25 ‘prisoner’ was an oversight” and “that the affidavit requirement of section 1915(a)(1) applies to 26 all persons applying to proceed [in forma pauperis].” Haynes v. Scott, 116 F.3d 137, 140 (5th Cir. 1997) (citing Floyd v. United States Postal Serv., 105 F.3d 274, 276 (6th Cir. 1997)); Lister 27 v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (“Section 1915(a) applies to all persons applying for IFP status, and not just to prisoners.” (citations omitted)); Martinez v. Kristi 28 Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004) (same). 1 1226, 1234 (9th Cir. 2015) (quoting United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 2 (per curiam)). Where an in forma pauperis affidavit is written in the language of § 1915(a)(1), the 3 court should ordinarily accept it, “particularly where unquestioned and where the judge does not 4 perceive a flagrant misrepresentation.” Adkins v. E.I. Du Pont De Nemours & Co., Inc., 335 U.S. 5 331, 339 (1948). 6 “The IFP statute does not itself define what constitutes insufficient assets,” but the 7 applicant does not need to be “absolutely destitute” to qualify for IFP status. Escobedo, 787 F.3d 8 at 1234 (citations omitted). In assessing the applicant’s financial condition, the court should 9 consider not just the applicant’s income, but also the money that applicant pays for necessities 10 such as rent, necessary bills, and food. Id. at 1235. “It [is] within the court’s discretion to make a 11 factual inquiry and to deny the motion when [plaintiff is] unable, or unwilling, to verify their 12 poverty.” McQuade, 647 F.2d at 940 (internal citations omitted). 13 III. Discussion 14 The question before the court is whether the current record demonstrates that plaintiff’s 15 application meets the § 1915(a)(1) standard under Adkins, 335 U.S. at 339, and its progeny. This 16 includes consideration of whether plaintiff’s funds are sufficient to pay not only the filing fee but 17 also the “costs of certain transcripts and records on appeal and of service of process.” See 28 18 U.S.C. § 1915(c), (d). However, despite being ordered to provide additional information 19 regarding his financial status, plaintiff has refused to provide a clear picture of his assets and 20 obligations, even after the court specified the financial information he must provide. Plaintiff’s 21 incomplete and misleading representations to the court make an assessment of his financial 22 condition all but impossible. 23 More troubling are plaintiff’s conflicting statements made under penalty of perjury. In his 24 original November 8, 2022 application, plaintiff wrote, under penalty of perjury, that he had 25 received no money from any sources in the past twelve months and had no cash or assets. ECF 26 No. 2. Yet his trust account statements filed in other cases show that, during the six months 27 preceding the filing of the complaint, he received hundreds of dollars in deposits to his trust 28 account in addition to the nearly $4,000.00 already in his account. Then, instead of addressing 1 the court’s order that he provide the source of these payments and beginning balance and that he 2 inform the court whether he receives money from those sources regularly, plaintiff responded, 3 without further elaboration, that the Attorney General’s Office was supposed to “resolve all 4 plaintiff’s filing fees.” ECF No. 7 at 1. Furthermore, though not a prisoner, plaintiff is civilly 5 detained, meaning many of his necessities are paid for by the state, and he has failed to address 6 whether he had any recurring expenses and his application to proceed in forma pauperis does not 7 reflect any such expenses. 8 While Escobedo, 787 F.3d at 1235, indicates that the court must consider the costs of 9 plaintiff’s necessities of life, such consideration is impossible without an accurate picture of those 10 costs and plaintiff’s income. Plaintiff has completely failed to explain why he is unable to afford 11 necessities of life and the costs of the filing fee, service of process, and appellate costs when he is 12 in the custody of the state and has thousands of dollars in his trust account. Nor is the court able 13 to determine on its own whether plaintiff can pay for the costs of service of process or costs 14 generated by any appeal that plaintiff may file because of plaintiff’s failure to clarify his assets 15 and expenses. Instead, plaintiff apparently believes that the Attorney General’s Office is 16 somehow responsible for “resolving” his filing fees but offers no evidence to support this belief. 17 Here, the court observed what appeared to be a “flagrant misrepresentation” in plaintiff’s 18 IFP application when it became aware that plaintiff’s trust account statement showed that plaintiff 19 had several thousand dollars in his inmate trust account. The court gave plaintiff an opportunity 20 to file a supplemental affidavit “to state the facts as to [his] poverty with some particularity, 21 definiteness and certainty.” McQuade, 647 F.2d at 940. However, plaintiff has completely failed 22 to supplement his application and it therefore appears that he is “unable, or unwilling, to verify 23 [his] poverty.” Id. The court cannot make the assessments necessary to determine the propriety 24 of IFP status here for the simple reason that plaintiff has not provided the necessary information 25 and is, apparently, unwilling or unable to do so. Plaintiff has made apparent misrepresentations 26 about his financial condition and has refused the court’s invitation to provide an accurate picture 27 of his finances. Accordingly, the motion to proceed in forma pauperis should be denied. See 28 McQuade, 647 F.2d at 940 (“It [is] within the court’s discretion to make a factual inquiry and to 1 | deny the motion when [plaintiff is] unable, or unwilling, to verify their poverty.” (internal 2 || citations omitted)). 3 ITV. Conclusion 4 For the reasons set forth above, plaintiff's application to proceed in forma pauperis should 5 || be denied and plaintiff should be required to pay the filing fee in full or face dismissal of this 6 || case. 7 Accordingly IT IS HEREBY ORDERED that the Clerk of the Court shall randomly 8 | assign a United States District Judge to this action. 9 IT IS FURTHER RECOMMENDED that: 10 1. Plaintiffs motion for leave to proceed in forma pauperis (ECF No. 2) be DENIED. 11 2. Plaintiff be given thirty days to pay the filing fee or face dismissal of the case. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within twenty-one days 14 | after being served with these findings and recommendations, plaintiff may file written objections 15 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 16 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 17 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 18 | (9th Cir. 1991). 19 | DATED: June 26, 2023 Af 20 ALLISONCLAIRE. UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28