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Alfaro v. Gilbert

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 10, 2010

MIKA ALFARO, PLAINTIFF,
v.
MARTHA GILBERT, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, who is proceeding without counsel, filed her complaint on June 8, 2010. (Dkt. No. 1.) She has filed an application to proceed informa pauperis in which she states that she receives $4,588 in take-home pay and$4,588 in gross wages per month, and that she has $624,533.00 in cash or in a checking or savings account. (Dkt. No. 2 at 1-2.) Plaintiff further avers that in the past twelve months she has received income from: her business, profession, or other self-employment; rent payments, interest, or dividends; a pension, annuity, or life insurance payments; disability or worker's compensation payments; and gifts or inheritances. (Id. at 1.)

Pursuant to federal statute, a filing fee of $350 is required to commence a civil action in federal district court. 28 U.S.C. § 1914(a). The court may authorize the commencement of an action "without prepayment of fees and costs or security therefor" by a person that is unable to pay such fees or provide security therefor. 28 U.S.C. § 1915(a)(1).

Plaintiff's declaration of the amount of her earnings and money on hand demonstrates that plaintiff is able to pay the filing fee and costs or provide security therefor. Thus, plaintiff has made an inadequate showing of indigency with respect to payment of the initial filing fee. See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995); Alexander v. Carson Adult High Sch., 9 F.3d 1448, 1449 (9th Cir. 1993); cf. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948).

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Plaintiff's application to proceed in forma pauperis be denied; and

2. Plaintiff be provided twenty-one days within which to pay the initial filing fee of $350.00.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

20100610

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