Jimenez v. County of San Joaquin ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO JIMENEZ, JR., No. 2:22–cv–01387–MCE–KJN 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S IFP REQUEST. 13 v. (ECF No. 2.) 14 COUNTY OF SAN JOAQUIN, 15 Defendant. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 The affidavit in support of the motion indicates plaintiff has a semi-annual income of 21 approximately $32,700 i.e., $65,400 annually, has $4,000 in liquid assets, and has $25,000 in a 22 401k and $800.00 in stock. (See ECF No. 2.) Plaintiff has monthly expenses of approximately 23 $3,050 plus $50,000 in outstanding loans (though it is unclear how much plaintiff pays on these 24 loans per month). (See ECF No. 2.) Plaintiff’s affidavit names two children who rely on him for 25 support. According to the United States Department of Health and Human Services, the current 26 poverty guideline for a household of 3 (not residing in Alaska or Hawaii) is $23,030. See 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 https://aspe.hhs.gov/poverty-guidelines. As plaintiff’s gross household income is almost 300% of 2 the 2021 poverty guideline, the court cannot find plaintiff unable to pay. To be sure, the court is 3 sympathetic to the fact that plaintiff does not have a large income, and that plaintiff also has 4 several expenses with which to contend. However, numerous litigants in this court have 5 significant monthly expenditures, and have to make difficult choices as to which expenses to 6 incur, which expenses to reduce or eliminate, and how to apportion their income between such 7 expenses and litigating an action in federal court. Such difficulties in themselves do not amount 8 to indigency. Thus, the court recommends plaintiff’s IFP motion be denied. See Tripati v. Rison, 9 847 F.2d 548, 548-49 (9th Cir. 1988) (absent consent of all parties, magistrate judge lacks 10 authority to issue dispositive order denying in forma pauperis status). Presently, a filing fee of 11 $402.00 is required to commence a civil action in this court. 12 However, based on the information provided by plaintiff, it is clear that a one-time 13 $402.00 payment may represent a significant strain on his monthly budget. Therefore, the court 14 finds it appropriate to allow for monthly payments of $80.00 until the $402.00 filing fee is 15 satisfied. Upon receipt of the first installment, the clerk of court would be ordered to issue the 16 appropriate service orders. 17 Accordingly, the undersigned RECOMMENDS: 18 1. Plaintiff’s IFP request (ECF No. 2) be DENIED; 19 2. Plaintiff be granted leave to satisfy the filing fee in $80 installments, beginning 20 November 1, 2022 (or sooner if plaintiff wishes), and allow for the clerk to issue a 21 summons after the first installment is received. 22 3. Plaintiff be warned that failure to satisfy the full filing fee according to the payment 23 schedule (OR) by November 1, 2022 may result in dismissal under Federal Rule of 24 Civil Procedure 41(b) 25 These findings and recommendations are submitted to the United States District Judge assigned to 26 the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). No objections period is required for 27 IFP denials. Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998), as amended (Sept. 9, 28 //// 1 |} 1998) (“[Plaintiff] was not entitled to file written objections to the magistrate judge's 2 || recommendation that [his] application to proceed in forma pauperis be denied.”) 3 | Dated: October 11, 2022 ' Foci) Aharon 5 KENDALL J. NE /jime.1387 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28