(PC) Leiva v. Zaldivar-Galves ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE LEIVA, Case No.: 1:23-cv-00986-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S APPLICATION TO 13 v. PROCEED IN FORMA PAUPERIS 14 IDALBERTO ZALDIVAR-GALVES, (Doc. 2) 15 Defendant. 14-DAY OBJECTION DEADLINE 16 Clerk of Court to Assign District Judge 17 I. BACKGROUND 18 Plaintiff Eddie Leiva initiated this action with the filing of his complaint on June 30, 2023. 19 (Doc. 1.) That same date, he filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 20 U.S.C. § 1915. (Doc. 2.) In his motion, Plaintiff failed to answer whether he was currently 21 employed. (Id. at 1.) Plaintiff indicated he has not received any money from the following 22 sources: a business, profession or other self-employment; rent, payments, interest or dividends; 23 pensions, annuities or life insurance payments; disability or workers compensation payments; 24 gifts or inheritances; or any other sources. (Id.) Plaintiff also indicated he had no cash, and did not 25 own any real estate, stocks, bonds, securities, or other financial instruments, automobiles or other 26 valuable property. (Id. at 2.) He also denied having any other assets. (Id.) 27 // 1 According to the certified account statement submitted by the California Department of 2 Corrections and Rehabilitation, Plaintiff had $7,129.80 in his inmate trust account as of January 3 1, 2023. (Doc. 6.) As of July 3, 2023, Plaintiff had $3,376.39 in his account. (Id.) Plaintiff has no 4 outstanding restitution fines nor are there any other obligations or encumbrances on his account. 5 (Id. at 2.) 6 II. DISCUSSION 7 Proceeding IFP “is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 8 1965). Although an IFP applicant need not be “destitute,” a showing of indigence is required. 9 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948) (recognizing that an 10 ability not to be able to pay for oneself and his dependents “the necessities of life” is sufficient). 11 Thus, a plaintiff must allege indigence “with some particularity, definiteness and certainty” 12 before IFP can be granted. United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 13 Prisoners, unlike non-prisoner litigants, are in state custody “and accordingly have the ‘essentials 14 of life’ provided by the government.” Taylor v. Delatoore, 281 F.3d 844, 849 (9th Cir. 2002). 15 The courts are inclined to reject IFP applications where an applicant can pay the filing fee 16 with an acceptable sacrifice to other expenses. See, e.g., Casey v. Haddad, No. 1:21-CV-00855- 17 SKO-PC, 2021 WL 2954009, at *1 (E.D. Cal. June 17, 2021), report and recommendation 18 adopted, No. 1:21-CV-00855-DAD-SKO-PC, 2021 WL 2948808 (E.D. Cal. July 14, 2021) (prior 19 balance of $1000, despite its decrease to $470 shortly before filing action sufficient to pay $402 20 filing fee); Riddell v. Frye, No. 1:21-CV-01065-SAB-PC, 2021 WL 3411876, at *1 (E.D. Cal. 21 July 9, 2021), report and recommendation adopted, No. 1:21-CV-01065-DAD-SAB-PC, 2021 22 WL 3472209 (E.D. Cal. Aug. 6, 2021) (available balance of $1297.21 sufficient to pay $402 23 filing fee and denying IFP); Allen v. Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (despite 24 plaintiff initially being permitted to proceed IFP, ordering plaintiff to pay $120 filing fee in full 25 out of $900 settlement proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (denying 26 IFP because “plaintiff possessed savings of $450 and the court correctly determined that this 27 amount was more than sufficient to allow the plaintiff to pay the filing fee in this action”). 1 F.2d at 940. He can pay the filing fee without any sacrifice to other expenses. Casey, 2021 WL 2 2954009, at *1. Further, although the source of Plaintiff’s funds is unclear, even assuming 3 Plaintiff received funds from the Coronavirus Aid, Relief and Economic Security Act (“CARES 4 Act”), there is no reason this Court should not consider such deposits for purposes of determining 5 Plaintiff's indigency. The Court is also unaware of binding precedent that prevents “stimulus 6 checks” from being included when making an indigency determination. To the contrary, other 7 courts in this district have included those funds when making the determination. See, e.g., 8 Hammler v. Zydus Pharmacy, No. 1:21-cv-00343-NONE-JLT (PC), 2021 WL 3048380, at *1-2 9 (E.D. Cal. July 20, 2021) (considering the plaintiff's “economic impact payments” when 10 determining that the plaintiff was “financially able to pay the filing fee”); Corral v. California 11 Highway Patrol, No. 1:21-cv-00822-DAD-JLT, 2021 WL 2268877, at *1 (E.D. Cal. June 3, 12 2021), report and recommendation adopted, No. 1:21-cv-00822-DAD-JLT, 2021 WL 3488309 13 (E.D. Cal. Aug. 9, 2021) (considering stimulus payments in finding plaintiff not entitled to 14 proceed IFP). 15 In sum, Plaintiff has sufficient funds to pay the filing fee for this action. He had more than 16 adequate funds of at least $3,376.39 to pay the filing fee when he filed his motion to proceed IFP, 17 and he had significantly more than that amount as of January 2023. 18 III. ORDER AND RECOMMENDATIONS 19 The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 20 Further, for the reasons stated above, the Court RECOMMENDS that: 21 1. Plaintiff’s motion to proceed IFP (Doc. 2) be DENIED; and 22 2. Plaintiff be ordered to pay the $402.00 filing fee in full. 23 These Findings and Recommendations will be submitted to the district judge assigned to 24 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 25 Findings and Recommendations, a party may file written objections with the Court. The 26 document should be captioned, “Objections to Magistrate Judge’s Findings and 27 Recommendations.” Failure to file objections within the specified time may result in waiver of 1 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 IT IS SO ORDERED. 3 4 Dated: July 7, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27