(PC) Washington v. Castillo ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TRACYE BENARD WASHINGTON, Case No.: 1:23-cv-01095-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S APPLICATION TO 13 v. PROCEED IN FORMA PAUPERIS 14 A. CASTILLO, et al., (Doc. 2) 15 Defendants. 14-DAY OBJECTION DEADLINE 16 Clerk of Court to Assign District Judge 17 I. BACKGROUND 18 Plaintiff Tracye Benard Washington initiated this action with the filing of his complaint 19 on July 14, 2023. (Doc. 1.) That same date, he filed a motion to proceed in forma pauperis 20 (“IFP”) pursuant to 28 U.S.C. § 1915. (Doc. 2.) 21 In his IFP motion, Plaintiff states he is not currently employed and has not received any 22 money from the following sources: a business, profession or other self-employment; rent, 23 payments, interest or dividends; pensions, annuities or life insurance payments; or disability or 24 workers compensation payments. (Id. at 1.) Plaintiff indicates he does receive money in the form 25 of gifts or inheritances, and he has received about “$80.00 from family member.” (Id.) Plaintiff 26 also states he has approximately $6,500 in cash. (Id. at 2.) He does not own any real estate, 27 stocks, bonds, securities, or other financial instruments, automobiles or other valuable property, 1 and denies having any other assets. (Id.) Finally, Plaintiff indicates no other individual is 2 dependent upon him for support. (Id.) 3 According to the certified account statement submitted by the California Department of 4 Corrections and Rehabilitation, Plaintiff had $8,378.16 in his inmate trust account as of January 5 1, 2023. (Doc. 8.) As of July 24, 2023, Plaintiff had $6,687.21 in his trust account. (Id.) Plaintiff 6 has no outstanding restitution fines nor are there any other obligations on his account. (Id. at 2.) 7 II. DISCUSSION 8 Proceeding IFP “is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 9 1965). Although an IFP applicant need not be “destitute,” a showing of indigence is required. 10 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948) (recognizing that an 11 ability not to be able to pay for oneself and his dependents “the necessities of life” is sufficient). 12 Thus, a plaintiff must allege indigence “with some particularity, definiteness and certainty” 13 before IFP can be granted. United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 14 Prisoners, unlike non-prisoner litigants, are in state custody “and accordingly have the ‘essentials 15 of life’ provided by the government.” Taylor v. Delatoore, 281 F.3d 844, 849 (9th Cir. 2002). 16 The courts are inclined to reject IFP applications where an applicant can pay the filing fee 17 with an acceptable sacrifice to other expenses. See, e.g., Casey v. Haddad, No. 1:21-CV-00855- 18 SKO-PC, 2021 WL 2954009, at *1 (E.D. Cal. June 17, 2021), report and recommendation 19 adopted, No. 1:21-CV-00855-DAD-SKO-PC, 2021 WL 2948808 (E.D. Cal. July 14, 2021) 20 (finding prior balance of $1000, despite being decreased to $470 shortly before filing action 21 sufficient to pay $402 filing fee); Riddell v. Frye, No. 1:21-CV-01065-SAB-PC, 2021 WL 22 3411876, at *1 (E.D. Cal. July 9, 2021), report and recommendation adopted, No. 1:21-CV- 23 01065-DAD-SAB-PC, 2021 WL 3472209 (E.D. Cal. Aug. 6, 2021) (finding available balance of 24 $1297.21 sufficient to pay $402 filing fee and denying IFP); Allen v. Kelly, 1995 WL 396860 at 25 *2 (N.D. Cal. 1995) (despite plaintiff initially being permitted to proceed IFP, ordering plaintiff 26 to pay $120 filing fee in full out of $900 settlement proceeds); Ali v. Cuyler, 547 F. Supp. 129, 27 130 (E.D. Pa. 1982) (denying IFP because “plaintiff possessed savings of $450 and the magistrate 1 filing fee in this action”). 2 Here, Plaintiff fails to show he is indigent. Adkins, 335 U.S. at 339-40; McQuade, 647 3 F.2d at 940. He can pay the filing fee without any sacrifice to other expenses. Casey, 2021 WL 4 2954009, at *1. 5 In sum, Plaintiff has sufficient funds to pay the filing fee for this action. Plaintiff had more 6 than adequate funds—at least $6,943.61— to pay the filing fee when he filed his motion to 7 proceed IFP on July 14, 2023, and he had significantly more than that amount as of January 2023. 8 III. ORDER AND RECOMMENDATIONS 9 The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 10 Further, for the reasons stated above, the Court RECOMMENDS that: 11 1. Plaintiff’s motion to proceed IFP (Doc. 2) be DENIED; and 12 2. Plaintiff be ordered to pay the $402.00 filing fee in full. 13 These Findings and Recommendations will be submitted to the district judge assigned to 14 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 15 Findings and Recommendations, a party may file written objections with the Court. The 16 document should be captioned, “Objections to Magistrate Judge’s Findings and 17 Recommendations.” Failure to file objections within the specified time may result in waiver of 18 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 19 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 IT IS SO ORDERED. 21 22 Dated: July 24, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27