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Mikaella C. Alfaro v. United States of America

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


January 7, 2013

MIKAELLA C. ALFARO, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.

FINDINGS AND RECOMMENDATIONS

Plaintiff, proceeding in pro se, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.*fn1 Dckt. No. 2. Plaintiff has submitted an affidavit in support of her application to proceed in forma pauperis, as required by 28 U.S.C. § 1915(a)(1). Id.

Pursuant to federal statute, a filing fee of $350.00 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 who submits an affidavit showing that he is unable to pay such costs or give security therefor. 28 U.S.C. § 1915(a)(1). An in forma pauperis applicant must demonstrate that because of her poverty, she cannot meet court costs and still provide herself and her dependents with the necessities of life.

Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004) (affidavit is sufficient if it represents that the litigant is "unable to pay for the court fees and costs, and to provide necessities for himself and his dependents") (citing Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339-40 (1948); see also, Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988) (denying in forma pauperis status where applicant had a net income of approximately $20,000).

Plaintiff's affidavit indicates that her gross and take-home wages are $5400.00 per month, that she receives $1107.00 per month in disability and $4568.00 in gifts or inheritance per month, and that she has $75,000.00 in a checking or savings account. Dckt. No. 2. Based on those averments, the court finds that plaintiff has failed to demonstrate that she has insufficient assets to pay the filing fee and costs and provide the necessities of life for herself.

Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's application to proceed in forma pauperis be DENIED, and that plaintiff be given thirty days in which to pay the 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." The parties are advised that 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, 1157 (9th Cir. 1991).


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