Emerson Robert Gaitan v. Macomber et al

• Court: District Court, E.D. California
• Decided: September 19, 2025
• Docket: 1:25-cv-00915
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EMERSON ROBERT GAITAN, Case No. 1:25-cv-00915-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN DISTRICT JUDGE

13 v. FINDINGS AND RECOMMENDATIONS TO DENY WITHOUT PREJUDICE PLAINTIFF’S 14 MACOMBER et al, MOTION TO PROCEED IN FORMA PAUPERIS 15 Defendant. FOURTEEN-DAY OBJECTION PERIOD 16 (Doc. No. 4) 17

18 19 On July 25, 2025, Plaintiff Emerson Robert Gaitan (“Plaintiff”) initiated this action by 20 filing a pro se civil rights complaint. (Doc. No. 1). Although the complaint appears to allege 21 claims stemming from Plaintiff’s incarceration within the California Department of Corrections, 22 it appears that Plaintiff is no longer incarcerated. (Id.). Plaintiff did not accompany the 23 complaint with the $405.00 filing fee or an application to proceed in forma pauperis under 28 24 U.S.C. § 1915. (Id.). On July 28, 2025, the Court ordered Plaintiff to complete and file an 25 Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) – AO 239 26 (“Long Form”) or to pay the $405.00 filing fee for this action. (Doc. No. 2). On August 8, 2025, 27 Plaintiff filed a completed Long Form. (Doc. No. 4). 28 Except for habeas corpus actions, all parties instituting any civil action, suit or proceeding 1 in a district court of the United States must pay a filing fee of $350.00 and additional 2 administrative fee of $55.00 for a total filing fee of $405.00. See 28 U.S.C. § 1914(a), (c). A 3 civil action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is 4 granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). Proceeding IFP is “a 5 matter of privilege and not right.” Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 6 (abrogated on different grounds). While IFP applicants need not be “destitute” a showing of 7 indigence is required. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). A 8 plaintiff must allege indigence “with some particularity, definiteness and certainty” before IFP 9 can be granted. United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). Courts are 10 required “to assure that federal funds are not squandered to underwrite, at public expense, either 11 frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material 12 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I.1984). 13 In his application, Plaintiff declares a monthly income of $2,150 for himself. (Doc. No. 4 14 at 1-2). Plaintiff reports he has $0 in cash and $0 in any banking accounts. (Id. at 2). Under 15 assets Plaintiff lists two motor vehicles, a 1969 Chevy Impala and a 2005 Chevy Suburban, he 16 does not list a value for either vehicle or any other assets. (Id. at 3). Plaintiff’s stated monthly 17 expenses include $200 in utilities, $150 in home maintenance, $350 in food, $50 in laundry and 18 dry-cleaning, $500 in transportation, $100 in “other” insurance, $150 in department store 19 installment payments, and $75 in “other” installment payments, with expenses totaling 20 approximately $1,575 per month. (Id. at 4-5). Despite Plaintiff’s statement that his “bills are 21 normally more than I make,” based on the forgoing, his monthly expenses do not exceed his 22 monthly income.1 Plaintiff omits information regarding his employment history, legal residence, 23 age, years of schooling, and the last four of his social security number. (Id. at 5). 24 In assessing whether a certain income level meets the poverty threshold under § 25 1915(a)(1), courts look to the federal poverty guidelines developed each year by the Department 26 of Health and Human Services. According to the U.S. Department of Health and Human 27 Services, the 2025 federal poverty guideline for a one-person household in the contiguous United

28 1 Plaintiff’s income minus his expenses results in a remainder of $575 each month. 1 States is $15,650 annually. See 2025 HHS Poverty Guidelines, https://aspe.hhs.gov/poverty- 2 guidelines (last visited September 19, 2025). Plaintiff’s annual income is over that threshold. 3 Moreover, courts have consistently held that IFP status should not be granted where an applicant 4 can pay the filing fee with acceptable sacrifice to other expenses. See Alvarez v. Berryhill, 2018 5 WL 6265021, at *1 (S.D. Cal. Oct. 1, 2018). Plaintiff’s affidavit does not demonstrate that paying 6 the $405 filing fee would deprive him of life’s necessities. See Escobedo, 787 F.3d at 1234; see 7 also Kaur v. Comm’r of Soc. Sec., 2022 WL 1023975, at *2 (Apr. 1, 2022), (recommending 8 denial of in forma pauperis application and noting “courts in this district have denied applications 9 to proceed IFP, even where the budget ‘appear[s] tight,’ if the itemized expenses reflect at least 10 some extent of discretionary spending beyond strict necessity.”) (collecting cases). 11 Accordingly, it is ORDERED: 12 The Clerk of Court is directed to assign this case to a district judge for the purposes of 13 reviewing these Findings and Recommendations. 14 It is further RECOMMENDED: 15 1. Plaintiff’s application to proceed in forma pauperis (Doc. No. 4) be DENIED 16 without prejudice. 17 2. Plaintiff be ordered to pay the $405.00 filing fee in full in order to proceed with 18 this action. 19 3. If Plaintiff fails to comply with this Order, the case may be dismissed for failure to 20 prosecute and/or comply with a court order. 21 NOTICE TO PARTIES 22 These Findings and Recommendations will be submitted to the United States District 23 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 24 after being served with a copy of these Findings and Recommendations, a party may file written 25 objections with the Court. Id.; Local Rule 304(b). The document should be captioned, 26 “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen 27 (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party 28 1 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 2 | CM/ECEF document and page number, when possible, or otherwise reference the exhibit with 3 | specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 4 | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 5 | 636(b)()(C). A party’s failure to file any objections within the specified time may result in the 6 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 7 8 | Dated: _ September 19, 2025 Wile. Th fareh Zack HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28