1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CYMEYON HILL, No. 2:22-cv-0686 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 JEFF LYNCH, et al.,

15 Defendants. 16 17 Plaintiff is a civil detainee proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. 19 I. Procedural and Factual Background 20 On June 5, 2023, plaintiff was ordered to supplement his motion for leave to proceed in 21 forma pauperis (IFP) because deposits to his trust account suggested that his claim of having 22 received no money from any source over the past twelve months was not accurate. ECF No. 8. 23 Specifically, the undersigned found that 24 [t]he application to proceed in forma pauperis represents that plaintiff has no cash or assets and in the last twelve months has not received 25 any money from a business, profession, or self-employment; rent payments, royalties, interest, or dividends; pensions, annuities, or life 26 insurance; disability or workers compensation; social security, disability, or other welfare; gifts or inheritances; spousal or child 27 support; or any other sources. ECF No. 2. However, plaintiff’s trust account statement reflects that as of April 20, 2022, plaintiff’s 28 account has an available balance of $3,012.82. ECF No. 7 at 1. It 1 shows that his initial balance on October 1, 2021, was $5,154.17, and that plaintiff received the following deposits: (1) $100.00 on January 2 15, 2022, February 5, 2022, and March 2, 2022, each labeled as JPAY; (2) $40.00 on February 2, 2022, labeled as JPAY; (3) 3 $1,200.00 on April 20, 2022, labeled as a special deposit; and (4) $600.00 and $51.47 on April 20, 2022, labeled as miscellaneous 4 income. Id. 5 Id. at 1-2. Plaintiff was ordered “to file further briefing addressing: 1) the sources of the funds for 6 the initial balance in his inmate trust account on October 21, 2021, and whether he receives 7 income regularly from any of those sources; 2) the sources of the deposits to his inmate trust 8 account listed above and whether he receives income regularly from any of these sources; and 3) 9 whether he has any recurring expenses for any necessities of life.” Id. at 2. Plaintiff has now 10 responded to the order. ECF No. 9. In his response, plaintiff states that during a settlement 11 conference he was told by a judge from the United States District Court for the Northern District 12 of California that Attorney General John Falconer would resolve all of his filing fees. Id. at 1. 13 The response provides no further details and does not address any of the matters identified in the 14 June 5, 2023 order. Id. at 1-2. 15 II. Legal Standard for In Forma Pauperis Status 16 Section 1915(a)(1) provides, in relevant part, that “any court of the United States may 17 authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or 18 criminal, or appeal therein, without prepayment of fees or security therefor, by a person who 19 submits an affidavit that includes a statement of all assets such [person1] possesses that the person 20 is unable to pay such fees or give security therefor.” “[A] plaintiff seeking IFP status must allege 21 poverty ‘with some particularity, definiteness and certainty.’” Escobedo v. Applebees, 787 F.3d 22 1226, 1234 (9th Cir. 2015) (quoting United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 23 (per curiam)). Where an in forma pauperis affidavit is written in the language of § 1915(a)(1), the 24 1 “Person” has been substituted for “prisoner” because it appears “that the use of the word 25 ‘prisoner’ was an oversight” and “that the affidavit requirement of section 1915(a)(1) applies to 26 all persons applying to proceed [in forma pauperis].” Haynes v. Scott, 116 F.3d 137, 140 (5th Cir. 1997) (citing Floyd v. United States Postal Serv., 105 F.3d 274, 276 (6th Cir. 1997)); Lister 27 v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (“Section 1915(a) applies to all persons applying for IFP status, and not just to prisoners.” (citations omitted)); Martinez v. Kristi 28 Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004) (same). 1 court should ordinarily accept it, “particularly where unquestioned and where the judge does not 2 perceive a flagrant misrepresentation.” Adkins v. E.I. Du Pont De Nemours & Co., Inc., 335 U.S. 3 331, 339 (1948). 4 “The IFP statute does not itself define what constitutes insufficient assets,” but the 5 applicant does not need to be “absolutely destitute” to qualify for IFP status. Escobedo, 787 F.3d 6 at 1234 (citations omitted). In assessing the applicant’s financial condition, the court should 7 consider not just the applicant’s income, but also the money that applicant pays for necessities 8 such as rent, necessary bills, and food. Id. at 1235. “It [is] within the court’s discretion to make a 9 factual inquiry and to deny the motion when [plaintiff is] unable, or unwilling, to verify their 10 poverty.” McQuade, 647 F.2d at 940 (internal citations omitted). 11 III. Discussion 12 The question before the court is whether the current record demonstrates that plaintiff’s 13 application meets the § 1915(a)(1) standard under Adkins, 335 U.S. at 339, and its progeny. This 14 includes consideration of whether plaintiff’s funds are sufficient to pay not only the filing fee but 15 also the “costs of certain transcripts and records on appeal and of service of process.” See 28 16 U.S.C. § 1915(c), (d). However, despite being ordered to provide additional information 17 regarding his financial status, plaintiff has refused to provide a clear picture of his assets and 18 obligations, even after the court specified the financial information he must provide. Plaintiff’s 19 incomplete and misleading representations to the court make an assessment of his financial 20 condition all but impossible. 21 More troubling are plaintiff’s conflicting statements made under penalty of perjury. In his 22 original March 24, 2022 application, plaintiff wrote, under penalty of perjury, that he had 23 received no money from any sources in the past twelve months and had no cash or assets. ECF 24 No. 2. Yet his trust account statement shows that, during the six months preceding the filing of 25 the complaint, he received hundreds of dollars in deposits to his trust account in addition to the 26 over $5,000.00 already in his account. ECF No. 7. Then, instead of addressing the court’s order 27 that he provide the source of these payments and beginning balance and that he inform the court 28 whether he receives money from those sources regularly, plaintiff responded, without further 1 elaboration, that the Attorney General’s Office was supposed to “resolve all plaintiff’s filing 2 fees.” ECF No. 9 at 1. Furthermore, though not a prisoner, plaintiff is civilly detained, meaning 3 many of his necessities are paid for by the state, and he has failed to address whether he had any 4 recurring expenses and his application to proceed in forma pauperis does not reflect any such 5 expenses. 6 While Escobedo, 787 F.3d at 1235, indicates that the court must consider the costs of 7 plaintiff’s necessities of life, such consideration is impossible without an accurate picture of those 8 costs and plaintiff’s income. Plaintiff has completely failed to explain why he is unable to afford 9 necessities of life and the costs of the filing fee, service of process, and appellate costs when he is 10 in the custody of the state and has thousands of dollars in his trust account. Nor is the court able 11 to determine on its own whether plaintiff can pay for the costs of service of process or costs 12 generated by any appeal that plaintiff may file because of plaintiff’s failure to clarify his assets 13 and expenses. Instead, plaintiff apparently believes that the Attorney General’s Office is 14 somehow responsible for “resolving” his filing fees and that he is entirely exempt from these 15 costs and entitled to IFP status solely based on the fact that he is a civil detainee. See ECF No. 1 16 at 4. Plaintiff offers no evidence to support his belief that the Attorney General’s Office is 17 responsible for his filing fees and his belief that he is exempt because he is a civil detainee is not 18 supported by the law. 19 Here, the court observed what appeared to be a “flagrant misrepresentation” in plaintiff’s 20 IFP application when it became aware that plaintiff’s trust account statement showed that plaintiff 21 had several thousand dollars in his inmate trust account. The court gave plaintiff an opportunity 22 to file a supplemental affidavit “to state the facts as to [his] poverty with some particularity, 23 definiteness and certainty.” McQuade, 647 F.2d at 940. However, plaintiff has completely failed 24 to supplement his application and it therefore appears that he is “unable, or unwilling, to verify 25 [his] poverty.” Id. The court cannot make the assessments necessary to determine the propriety 26 of IFP status here for the simple reason that plaintiff has not provided the necessary information 27 and is, apparently, unwilling or unable to do so. Plaintiff has made apparent misrepresentations 28 about his financial condition and has refused the court’s invitation to provide an accurate picture 1 | of his finances. Accordingly, the motion to proceed in forma pauperis should be denied. See 2 | McQuade, 647 F.2d at 940 (“It [is] within the court’s discretion to make a factual inquiry and to 3 || deny the motion when [plaintiff is] unable, or unwilling, to verify their poverty.” (internal 4 || citations omitted)). 5 ITV. Conclusion 6 For the reasons set forth above, plaintiff's application to proceed in forma pauperis should 7 || be denied and plaintiff should be required to pay the filing fee in full or face dismissal of this 8 || case. 9 Accordingly IT IS HEREBY ORDERED that the Clerk of the Court shall randomly 10 || assign a United States District Judge to this action. 1] IT IS FURTHER RECOMMENDED that: 12 1. Plaintiffs motion for leave to proceed in forma pauperis (ECF No. 2) be DENIED. 13 2. Plaintiff be given thirty days to pay the filing fee or face dismissal of the case. 14 These findings and recommendations are submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 16 | after being served with these findings and recommendations, plaintiff may file written objections 17 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 18 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 19 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 20 | (9th Cir. 1991). 21 | DATED: June 26, 2023 ~ 22 AMttun—Clone_

ALLISON CLAIRE

23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28