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-1849 KJM KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 HER, et al., 15 Defendants. 16 17 Plaintiff is a civil detainee, proceeding without counsel, with a civil rights action. For the 18 reasons stated herein, the undersigned recommends that plaintiff’s application to proceed in forma 19 pauperis be denied. 20 Background 21 On December 8, 2022, the undersigned recommended that plaintiff’s application to 22 proceed in forma pauperis be denied. (ECF No. 10.) In evaluating plaintiff’s in forma pauperis 23 application, the undersigned looked to whether plaintiff’s application showed that he was “unable 24 to pay [the filing fee] or give security therefor.” (Id., citing 28 U.S.C. § 1915(a).) The 25 undersigned observed that plaintiff’s trust account statement indicated that as of September 20, 26 2022, plaintiff had $5,221.90 in his prison trust account. (Id.) The undersigned found that 27 plaintiff’s trust account statement demonstrated that plaintiff was able to pay the filing fee of 28 $402. (Id.) 1 On February 10, 2023, the Honorable Kimberly J. Mueller declined to adopt the December 2 8, 2022 findings and recommendations. (ECF No. 12.) Citing Bradford v. DeFranco, 2022 WL 3 17485948 (E.D. Cal. Dec. 7, 2022), Judge Mueller stated that this court declined to deny requests 4 to proceed in forma pauperis solely based on the balance of a detained person’s trust account. (Id.) 5 Judge Mueller referred this matter back to the undersigned for further review under the relevant 6 legal standard. (Id.) 7 Bradford v. DeFranco 8 In Bradford, Judge Mueller quoted Escobedo v. Applebees, 787 F.3d 1226 (9th Cir. 2015) 9 (internal citations omitted): 10 An affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the 11 necessities of life. The IFP statute does not itself define what constitutes insufficient assets. As this court has recognized, “[o]ne 12 need not be absolutely destitute to obtain benefits of the in forma pauperis statute.” Nonetheless, a plaintiff seeking IFP status must 13 allege poverty “with some particularity, definiteness and certainty.” 14 Bradford, 2022 WL 17485948, at *1-2 (quoting Escobedo v. Applebees, 787 F.3d at 1234). 15 In Bradford, Judge Mueller observed that the grant of in forma pauperis status covers 16 more than the filing fee for a federal court action. Id. at *2. It also covers the costs of certain 17 transcripts and records on appeal and service of process. Id. 18 Finally, in Bradford, Judge Mueller noted that the in forma pauperis statute does not 19 provide a definition of “what constitutes insufficient assets” for purposes of a grant of in forma 20 pauperis status. Id. “As a general proposition, ‘an affidavit is sufficient which states that one 21 cannot because of his poverty pay or give security for the costs and still be able to provide 22 himself and dependents with the necessities of life.’” Id. (quoting Adkins v. E.I. Du Pont De 23 Nemours & Co., Inc., 335 U.S. 331, 339 (1948)). “An individual need not be ‘absolutely 24 destitute’ to qualify for in forma pauperis status.” Id. (citing Adkins, 335 U.S. at 339). 25 //// 26 //// 27 //// 28 //// 1 Hill v. Allison 2 Also relevant to the instant action is Judge Mueller’s consideration of plaintiff’s 3 application to proceed in forma pauperis in Hill v. Allison, 2: 22-cv-0718 KJM EFB P.1 In case 4 22-cv-0718, on June 10, 2022, Judge Mueller denied plaintiff’s motion to proceed in forma 5 pauperis. See 22-cv-0718, ECF No. 11. On July 21, 2022, plaintiff filed a motion for 6 reconsideration of the June 10, 2022 order. Case 22-cv-0718, ECF No. 15. 7 In case 22-cv-0718, on September 13, 2022, Judge Mueller issued an order observing that 8 the relevant trust account statement showed on October 1, 2021, a balance of $5,154.7, and 9 reflected three separate entries for income from “JPAY” in the amount of $100.00, $40.00, and 10 $100.00, respectively; it also showed an “inmate special deposit” on April 20, 2022, in the 11 amount of $1,200, and two entries on the same date for “misc. income (exempt) in the amount of 12 $600.00 and $51.47, respectively.” Case 22-cv-0718, ECF No. 16 at 2. 13 In case 22-cv-0718, in the September 13, 2022 order, Judge Mueller directed plaintiff to 14 supplement his April 7, 2022 affidavit in support of his application to proceed in forma pauperis 15 with a sworn statement explaining: 1) the source of the funds for the initial balance in his inmate 16 trust account on October 1, 2021; 2) what “JPAY” is, whether he receives regular income from 17 this source and, if so, the amount of that income; and 3) the source(s) of the three deposits to his 18 inmate trust account on April 20, 2022, and whether he receives income regularly from these 19 sources. Case 22-cv-0718, ECF No. 16 at 2-3. 20 In case 22-cv-0718, after receiving plaintiff’s briefing in response to the September 13, 21 2022 order, on November 4, 2022 Judge Mueller granted plaintiff’s motion for reconsideration of 22 the court’s order denying his application to proceed in forma pauperis. Case 22-cv-0718, ECF 23 No. 18. Judge Mueller referred the matter back to the assigned magistrate judge, Magistrate 24 Judge Brennan, for further review and consideration of whether, on the record as a whole, 25 plaintiff’s application to proceed in forma pauperis met the standard in 28 U.S.C. § 1915(a) as 26 interpreted by Adkins, supra, and its progeny. Case 22-cv-0718, ECF No. 18. 27 1 The undersigned takes judicial notice of the orders in case 22-cv-0718. Fed. R. Evid. 201(b); 28 Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). 1 In case 22-cv-0718, on January 12, 2023, Magistrate Judge Brennan recommended that 2 plaintiff’s application to proceed in forma pauperis be denied. Case 22-cv-0718, ECF No. 19. 3 Magistrate Judge Brennan observed that plaintiff’s further briefing failed to respond to Judge 4 Mueller’s order that he provide further information regarding the three specific matters identified 5 in the September 13, 2022 order. Case 22-cv-0718, ECF No. 19 at 3. 6 Magistrate Judge Brennan found that plaintiff made incomplete and misleading 7 representations to the court, making it all but impossible for the court to make an assessment of 8 his financial condition. Case 22-cv-0718, ECF No. 19 at 5. Magistrate Judge Brennan found that 9 plaintiff made conflicting statements regarding his financial situation under penalty of perjury. 10 Case 22-cv-0718, ECF No. 19 at 5. Magistrate Judge Brennan also found that plaintiff 11 completely failed to explain how he could not afford hygiene items, legal paper, and the costs of 12 the filing fee, service or process, and appellate costs with the thousands of dollars in his trust 13 account. Case 22-cv-0718, ECF No. 19 at 6. Magistrate Judge Brennan concluded that plaintiff 14 “made apparent misrepresentations about his financial condition and has refused the court’s 15 invitation to provide an accurate picture of his finances.” Case 22-cv-0718, ECF No. 19 at 6. 16 In case 22-cv-0718, on March 22, 2023, Judge Mueller adopted the January 12, 2023 17 findings and recommendations recommending that plaintiff’s application to proceed in forma 18 pauperis be denied. Case 22-cv-0718, ECF No. 20.
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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-1849 KJM KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 HER, et al., 15 Defendants. 16 17 Plaintiff is a civil detainee, proceeding without counsel, with a civil rights action. For the 18 reasons stated herein, the undersigned recommends that plaintiff’s application to proceed in forma 19 pauperis be denied. 20 Background 21 On December 8, 2022, the undersigned recommended that plaintiff’s application to 22 proceed in forma pauperis be denied. (ECF No. 10.) In evaluating plaintiff’s in forma pauperis 23 application, the undersigned looked to whether plaintiff’s application showed that he was “unable 24 to pay [the filing fee] or give security therefor.” (Id., citing 28 U.S.C. § 1915(a).) The 25 undersigned observed that plaintiff’s trust account statement indicated that as of September 20, 26 2022, plaintiff had $5,221.90 in his prison trust account. (Id.) The undersigned found that 27 plaintiff’s trust account statement demonstrated that plaintiff was able to pay the filing fee of 28 $402. (Id.) 1 On February 10, 2023, the Honorable Kimberly J. Mueller declined to adopt the December 2 8, 2022 findings and recommendations. (ECF No. 12.) Citing Bradford v. DeFranco, 2022 WL 3 17485948 (E.D. Cal. Dec. 7, 2022), Judge Mueller stated that this court declined to deny requests 4 to proceed in forma pauperis solely based on the balance of a detained person’s trust account. (Id.) 5 Judge Mueller referred this matter back to the undersigned for further review under the relevant 6 legal standard. (Id.) 7 Bradford v. DeFranco 8 In Bradford, Judge Mueller quoted Escobedo v. Applebees, 787 F.3d 1226 (9th Cir. 2015) 9 (internal citations omitted): 10 An affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the 11 necessities of life. The IFP statute does not itself define what constitutes insufficient assets. As this court has recognized, “[o]ne 12 need not be absolutely destitute to obtain benefits of the in forma pauperis statute.” Nonetheless, a plaintiff seeking IFP status must 13 allege poverty “with some particularity, definiteness and certainty.” 14 Bradford, 2022 WL 17485948, at *1-2 (quoting Escobedo v. Applebees, 787 F.3d at 1234). 15 In Bradford, Judge Mueller observed that the grant of in forma pauperis status covers 16 more than the filing fee for a federal court action. Id. at *2. It also covers the costs of certain 17 transcripts and records on appeal and service of process. Id. 18 Finally, in Bradford, Judge Mueller noted that the in forma pauperis statute does not 19 provide a definition of “what constitutes insufficient assets” for purposes of a grant of in forma 20 pauperis status. Id. “As a general proposition, ‘an affidavit is sufficient which states that one 21 cannot because of his poverty pay or give security for the costs and still be able to provide 22 himself and dependents with the necessities of life.’” Id. (quoting Adkins v. E.I. Du Pont De 23 Nemours & Co., Inc., 335 U.S. 331, 339 (1948)). “An individual need not be ‘absolutely 24 destitute’ to qualify for in forma pauperis status.” Id. (citing Adkins, 335 U.S. at 339). 25 //// 26 //// 27 //// 28 //// 1 Hill v. Allison 2 Also relevant to the instant action is Judge Mueller’s consideration of plaintiff’s 3 application to proceed in forma pauperis in Hill v. Allison, 2: 22-cv-0718 KJM EFB P.1 In case 4 22-cv-0718, on June 10, 2022, Judge Mueller denied plaintiff’s motion to proceed in forma 5 pauperis. See 22-cv-0718, ECF No. 11. On July 21, 2022, plaintiff filed a motion for 6 reconsideration of the June 10, 2022 order. Case 22-cv-0718, ECF No. 15. 7 In case 22-cv-0718, on September 13, 2022, Judge Mueller issued an order observing that 8 the relevant trust account statement showed on October 1, 2021, a balance of $5,154.7, and 9 reflected three separate entries for income from “JPAY” in the amount of $100.00, $40.00, and 10 $100.00, respectively; it also showed an “inmate special deposit” on April 20, 2022, in the 11 amount of $1,200, and two entries on the same date for “misc. income (exempt) in the amount of 12 $600.00 and $51.47, respectively.” Case 22-cv-0718, ECF No. 16 at 2. 13 In case 22-cv-0718, in the September 13, 2022 order, Judge Mueller directed plaintiff to 14 supplement his April 7, 2022 affidavit in support of his application to proceed in forma pauperis 15 with a sworn statement explaining: 1) the source of the funds for the initial balance in his inmate 16 trust account on October 1, 2021; 2) what “JPAY” is, whether he receives regular income from 17 this source and, if so, the amount of that income; and 3) the source(s) of the three deposits to his 18 inmate trust account on April 20, 2022, and whether he receives income regularly from these 19 sources. Case 22-cv-0718, ECF No. 16 at 2-3. 20 In case 22-cv-0718, after receiving plaintiff’s briefing in response to the September 13, 21 2022 order, on November 4, 2022 Judge Mueller granted plaintiff’s motion for reconsideration of 22 the court’s order denying his application to proceed in forma pauperis. Case 22-cv-0718, ECF 23 No. 18. Judge Mueller referred the matter back to the assigned magistrate judge, Magistrate 24 Judge Brennan, for further review and consideration of whether, on the record as a whole, 25 plaintiff’s application to proceed in forma pauperis met the standard in 28 U.S.C. § 1915(a) as 26 interpreted by Adkins, supra, and its progeny. Case 22-cv-0718, ECF No. 18. 27 1 The undersigned takes judicial notice of the orders in case 22-cv-0718. Fed. R. Evid. 201(b); 28 Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). 1 In case 22-cv-0718, on January 12, 2023, Magistrate Judge Brennan recommended that 2 plaintiff’s application to proceed in forma pauperis be denied. Case 22-cv-0718, ECF No. 19. 3 Magistrate Judge Brennan observed that plaintiff’s further briefing failed to respond to Judge 4 Mueller’s order that he provide further information regarding the three specific matters identified 5 in the September 13, 2022 order. Case 22-cv-0718, ECF No. 19 at 3. 6 Magistrate Judge Brennan found that plaintiff made incomplete and misleading 7 representations to the court, making it all but impossible for the court to make an assessment of 8 his financial condition. Case 22-cv-0718, ECF No. 19 at 5. Magistrate Judge Brennan found that 9 plaintiff made conflicting statements regarding his financial situation under penalty of perjury. 10 Case 22-cv-0718, ECF No. 19 at 5. Magistrate Judge Brennan also found that plaintiff 11 completely failed to explain how he could not afford hygiene items, legal paper, and the costs of 12 the filing fee, service or process, and appellate costs with the thousands of dollars in his trust 13 account. Case 22-cv-0718, ECF No. 19 at 6. Magistrate Judge Brennan concluded that plaintiff 14 “made apparent misrepresentations about his financial condition and has refused the court’s 15 invitation to provide an accurate picture of his finances.” Case 22-cv-0718, ECF No. 19 at 6. 16 In case 22-cv-0718, on March 22, 2023, Judge Mueller adopted the January 12, 2023 17 findings and recommendations recommending that plaintiff’s application to proceed in forma 18 pauperis be denied. Case 22-cv-0718, ECF No. 20. On April 20, 2023, Judge Mueller dismissed 19 case 22-cv-0718 after plaintiff failed to pay the filing fee. Case 22-cv-0718, ECF No. 21. 20 Further Briefing in the Instant action 21 On February 16, 2023, the undersigned ordered plaintiff to file further briefing in support 22 of his application to proceed in forma pauperis. (ECF No. 13.) In the February 16, 2023 order, 23 the undersigned observed that plaintiff’s trust account statement, filed October 17, 2022, showed 24 a deposit to plaintiff’s trust account of $1,200 on April 20, 2022. (Id. at 4.) The trust account 25 statement also showed “misc. income” of $600 and $51.47 on April 20, 2022. (Id.) The trust 26 account statement showed deposits through JPAY for $200 on June 14, 2022. (Id.) Plaintiff’s 27 trust account balance on April 1, 2022, was $3,818.37. (Id.) On September 20, 2022, plaintiff’s 28 trust account balance was $5,221.90. (Id.) 1 In the February 16, 2023 order, the undersigned observed that in his application to 2 proceed in forma pauperis, signed October 2, 2022, plaintiff claimed that he received no money 3 from business, profession, or other self-employment, rent payments, interest or dividends, 4 pensions, annuities, or life insurance payments, disability or workers compensate payments, gifts 5 or inheritances or any other source over the last twelve months. (Id.) Plaintiff also stated that he 6 had no cash. (Id.) Plaintiff stated that no persons were dependent on him for support. (Id.) 7 In the February 16, 2023 order, the undersigned observed that the deposits to plaintiff’s 8 trust account, set forth above, suggested that plaintiff’s claim in his in forma pauperis application 9 that he received no money over the last twelve months was not accurate. (Id.) Accordingly, the 10 undersigned ordered plaintiff to file further briefing, within thirty days, addressing: 1) the source 11 of the funds for the initial balance in his inmate trust account on April 1, 2022; 2) the source(s) of 12 the three deposits to his inmate trust account on April 20, 2022, and whether he receives income 13 regularly from these sources; and 3) the source of the $200 deposit made via JPAY on June 14, 14 2022. (Id. at 4-5.) 15 On April 28, 2023, the undersigned recommended that this action be dismissed for failure 16 to prosecute after plaintiff failed to file the further briefing discussed in the February 16, 2023 17 order. (ECF No. 15.) On May 11, 2023, plaintiff filed objections to the April 28, 2023 findings 18 and recommendations. (ECF No. 16.) In his objections, plaintiff failed to address his failure to 19 respond to the February 16, 2023 order. (Id.) Despite this failure, on May 19, 2023, the 20 undersigned vacated the April 28, 2023 findings and recommendations and granted plaintiff 21 twenty-one days to file the further briefing in support of his application to proceed in forma 22 pauperis, as discussed in the February 16, 2023 order. (ECF No. 17.) 23 On June 5, 2023, plaintiff filed briefing addressing his in forma pauperis application. 24 (ECF No. 18.) In this briefing, plaintiff did not address the source of various deposits to his trust 25 account. Instead, plaintiff claimed that the Honorable Robert Illman ordered Deputy Attorney 26 General John Falconer to “clear up” all of plaintiff’s filing fees in the United States District Court 27 for the Eastern District of California as part of a settlement reached in a case proceeding in the 28 Northern District. (Id. at 4-5.) Plaintiff requested that the court investigate the matter. (Id.) 1 On June 19, 2023, the undersigned issued an order responding to plaintiff’s June 5, 2023 2 briefing. (ECF No. 19.) In this order, the undersigned informed plaintiff that he had no authority 3 to enforce a plea agreement allegedly reached between plaintiff and the Office of the Attorney 4 General in the Northern District case. (Id.) The undersigned informed plaintiff that his remedy 5 for an alleged breach of this plea agreement was to file a notice of breach of plea agreement in the 6 Northern District case. (Id.) The undersigned granted plaintiff thirty days to file a notice of 7 breach agreement in the Northern District case where the Office of the Attorney General 8 allegedly agreed to pay the filing fee for the instant action. (Id.) The undersigned ordered 9 plaintiff to file proof of service in the instant action of the notice of breach of plea agreement filed 10 in the Northern District case within that time. (Id.) The undersigned warned plaintiff that if he 11 failed to comply with this order, the undersigned would disregard plaintiff’s claim that the Office 12 of the Attorney General agreed to pay the filing fee for the instant action in the settlement 13 agreement reached in the Northern District. (Id.) 14 On July 10, 2023, plaintiff filed a notice of breach of plea agreement in the instant action. 15 (ECF No. 20.) In this pleading, plaintiff alleged that the Office of the Attorney General breached 16 a plea agreement in plaintiff’s Northern District case, case 21-cv-3189 YGR, when they failed to 17 pay the filing fee for the instant action. (Id.) 18 On July 18, 2023, the undersigned issued an order observing that plaintiff’s July 10, 2023 19 pleading did not comply with the June 29, 2023 order because it did not contain a proof of service 20 demonstrating that plaintiff filed a notice of breach of plea agreement in his Northern District 21 case. (ECF No. 21.) The undersigned also observed that a review of the docket for case 21-cv- 22 3189 YGR, in the Northern District reflected that plaintiff did not file the notice of breach of plea 23 agreement in that case.2 (Id.) The undersigned granted plaintiff fourteen days to file proof of 24 service showing that he filed the notice of breach of plea agreement in the Northern District case. 25 (Id.) 26 //// 27 2 The undersigned takes judicial notice of the docket sheet in case 21-cv-3189 YGR. Fed. R. 28 Evid. 201. 1 Fourteen days passed from the July 18, 2023 order and plaintiff failed to file proof of 2 service showing that he filed the notice of breach of plea agreement in his Northern District case. 3 After again reviewing the docket for case 21-cv-3189 YGR in the Northern District, the 4 undersigned again finds that plaintiff failed to file a notice of breach agreement in that case. 5 Based on plaintiff’s failure to comply with the orders filed June 29, 2023, and July 18, 2023, 6 directing him to file proof of service of the notice of breach of plea agreement in case 21-cv-3189 7 YGR, the undersigned disregards plaintiff’s claim that the Office of the Attorney General agreed 8 to pay the filing fee for the instant action. 9 Governing Law 10 Title 28 U.S.C. § 1915(a)(1) provides, in relevant part: “[A]ny court of the United States 11 may authorize the commencement, prosecution or defense of any suit or action or proceeding, 12 civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person 13 who submits an affidavit that includes a statement of all assets such [person] prisoner possesses 14 that the person is unable to pay such fees or give security therefor.” When an in forma pauperis 15 affidavit is written in the language of § 1915(a)(1), the court should ordinarily accept it, 16 particularly if it is unquestioned “and where the judge does not perceive a flagrant 17 misrepresentation.” Adkins v. E.I. Du Pont De Nemours & Co., 335 U.S. 331, 339 (1948). 18 “The in forma pauperis statute does not itself define what constitutes insufficient assets,” 19 but the applicant does not need to be “absolutely destitute” to qualify for in forma pauperis status. 20 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In assessing the applicant’s 21 financial condition, the court should consider not just the applicant’s income, but also the money 22 that applicant pays for necessities such as rent, necessary bills, and food. Id. at 1235. 23 “When a claim of poverty is made under section 1915 it is proper and indeed essential for 24 the supporting affidavits to state facts as to the affiant’s poverty with some particularity and 25 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). It is 26 within the court’s discretion to deny a motion to proceed in forma pauperis “when the [movant 27 was] unable, or unwilling, to verify their poverty.” Id. See also Hopkins v. Tacoma Mun. Ct., 28 393 Fed. Appx. 476, 477 (9th Cir. 2010) (the district court did not abuse its discretion in denying 1 an in forma pauperis application where the movant failed to account for his different statements 2 regarding his employment history or otherwise to verify his claim of poverty.). 3 Discussion 4 The question before the undersigned is whether the current record, as a whole, 5 demonstrates that plaintiff’s application to proceed in forma pauperis meets the § 1915(a) 6 standard under Adkins, 335 U.S. at 339, and its progeny. This question includes consideration of 7 whether plaintiff’s funds are sufficient to pay not only the filing fee but also the costs of service 8 of process and of transcripts and records on appeal. 9 The undersigned finds that plaintiff’s misleading and incomplete representations to the 10 court make an assessment of his financial condition all but impossible. Despite multiple 11 opportunities to do so, plaintiff refused to provide a clear picture of his financial status. 12 The undersigned is also troubled by plaintiff’s conflicting statements made under penalty 13 of perjury. For example, in his application to proceed in forma pauperis signed October 2, 2022, 14 plaintiff wrote that he had no cash or other assets. (ECF No. 2 at 2.) Plaintiff also stated that in 15 the past 12 months, he received no money from any sources. (Id. at 1.) However, as discussed 16 above, plaintiff’s trust account statement showed a deposit to plaintiff’s trust account of $1,200 17 on April 20, 2022. (ECF No. 3 at 1.) The trust account statement also showed “misc. income” of 18 $600 and $51.47 on April 20, 2022. (Id.) The trust account statement showed deposits through 19 JPAY for $200 on June 14, 2022. (Id.) Plaintiff’s trust account balance on April 1, 2022, was 20 $3,818.37. (Id.) On September 20, 2022, plaintiff’s trust account balance was $5,221.90. (Id.) 21 Plaintiff failed to respond to the court’s orders directing him to provide the sources of his 22 payments and address whether he receives money from those sources regularly. 23 The undersigned cannot consider the costs of plaintiff’s life necessities, as required by 24 Escobedo, without an accurate picture of plaintiff’s income. Nor can the undersigned determine 25 whether plaintiff can pay for the costs of service of process or costs generated by any appeal that 26 plaintiff may file in this case because of plaintiff’s lack of compliance with the earlier orders.3 27 3 It is also impossible, at this early stage in the case, to estimate the costs of transcripts and 28 records on appeal. If this case is resolved at the motion to dismiss stage, for example, such costs 1 | Plaintiff's filings, as well as his trust account statement, show that plaintiff is “unable, or 2 | unwilling, to verify [his] poverty.” McQuade, 647 F.3d at 940. The undersigned cannot make the 3 || assessments necessary to determine the propriety of in forma pauperis status because plaintiff 4 || failed to provide the necessary information and is, apparently, unwilling to do so. 5 Based on plaintiff's apparent misrepresentations about his financial condition and his 6 || refusal to provide an accurate picture of his finances, the undersigned recommends that □□□□□□□□□□□ 7 || application to proceed in forma pauperis be denied. Hopkins, 393 Fed.Appx. at 477; Bridgewater 8 | v.Bankson, 2010 WL 291786, at *3 (N.D. Cal. January 19, 2010) (where plaintiff failed to give a 9 || consistent or adequate statement of her finances, the court could not assess her financial status 10 || and thus denied her application to proceed in forma pauperis). 11 Accordingly, IT IS HEREBY RECOMMENDED that plaintiffs application to proceed in 12 | forma pauperis be denied. 13 These findings and recommendations are submitted to the United States District Judge 14 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 15 || after being served with these findings and recommendations, plaintiff may file written objections 16 || with the court and serve a copy on all parties. Such a document should be captioned 17 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 18 | failure to file objections within the specified time may waive the right to appeal the District 19 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 20 | Dated: August 10, 2023 71 Ad 22 KENDALL J. Wha Hill1849.den UNITED STATES MAGISTRATE JUDGE 23 24 25 | would be much lower than if the case were to proceed through a trial. Should the court deny 26 || plaintiffs request for in forma pauperis status now, plaintiff may make a new motion to proceed in forma pauperis on appeal under Federal Rule of Appellate Procedure 24(a)(1). Ifthe district 27 || court were to deny that motion, plaintiff could file another application to proceed in forma pauperis in the appellate court. Fed. R. App. P. 24(a)(5). Thus, plaintiff has additional 28 | opportunities to demonstrate that he cannot afford the costs of transcripts and records on appeal.