United States District Court, D. Hawaii
LEONARD G. HOROWITZ and SHERRI KANE, Plaintiffs,
PAUL J. SULLA, JR., Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATION TO DENY
APPLICATION TO PROCEED WITHOUT PREPAYING FEES
Michael Seabright Judge
10, 2016, Plaintiffs Leonard G. Horowitz and Sherri Kane
(“Appellants”) filed a Notice of Appeal from the
Bankruptcy Court’s Order Denying Motion for Preliminary
Injunction and Extended Stay, dated May 3, 2016. See
Doc. No. 1. In connection with the appeal, Horowitz filed an
Application to Proceed in District Court Without Prepaying
Fees or Costs (“IFP Application”). Doc. No. 1-2. On
May 13, 2016, the Bankruptcy Court issued a Findings and
Recommendation to Deny the IFP Application
(“F&R”). Doc. No. 1.
court finds this matter suitable for disposition without a
hearing pursuant to Local Rule 7.2(d). Based on the
following, after a careful de novo review, the court
ADOPTS the F&R and DENIES the IFP Application.
courts may authorize the commencement of any suit, without
prepayment of fees or security, by a person who submits an
affidavit that includes a statement of all assets the person
possesses and demonstrates that he or she is unable to pay
such costs or give such security. See 28 U.S.C.
§ 1915(a)(1). “[A]n affidavit is sufficient which
states that one cannot because of [ ] poverty pay or give
security for the costs and still be able to provide himself
and dependents with the necessities of life.”
Adkins v. E.I. Du Pont de Nemours & Co., 335
U.S. 331, 339 (1948) (internal quotations omitted); see
also United States v. McQuade, 647 F.2d 938, 940 (9th
Cir. 1981) (stating that the affidavit must “state the
facts as to affiant’s poverty with some particularity,
definiteness and certainty” (internal quotation
reviewing a motion filed pursuant to § 1915(a),
“[t]he only determination to be made by the court . . .
is whether the statements in the affidavit satisfy the
requirement of poverty.” Martinez v. Kristi
Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004).
While § 1915(a) does not require a litigant to
demonstrate absolute destitution, Adkins, 335 U.S.
at 339, the applicant must nonetheless show that he or she is
“unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a).
Application indicates that Horowitz receives approximately
$1, 500 per month in royalties from copyrighted material and
that he has no other income. Doc. No. 1-2. Horowitz’s
assets include two vehicles worth $1, 500 each, and a parcel
of land worth $21, 300. Id. Horowitz further states
that Kane, his “fiance and assistant, ” is his
sole dependant. Id.
on the IFP Application, Horowitz’s income falls $430
below the poverty threshold identified by the Department of
Health and Human Services (“HHS”) 2016 Poverty
Guidelines. See 2016 HHS Poverty Guidelines,
f-the-hhs-poverty-guidelines) (last visited June 14, 2015)
(indicating that the poverty threshold for a two-person
household in Hawaii is $18, 430). However, as the F&R
noted, “[i]n contrast to the information in his IFP
affidavits, on March 9, 2016, Dr. Horowitz calculated his
monthly income as $1, 931.76 plus another $364.25 from
‘Unmarried partner contributions’ for a combined
monthly income of $2, 296.” Doc. No. 1, F&R at 4.
When these figures are taken into account, Appellants’
annual household income exceeds the HHS 2016 Poverty
Guidelines by nearly $10, 000.
the IFP Application indicates that Horowitz has assets of
approximately $24, 300, thereby further indicating that
Appellants are either capable of paying the costs of this
proceeding or giving security therefor. See 28
U.S.C. § 1915(a). Moreover, as the F&R noted,
Appellants previously disclosed substantial assets in
bankruptcy court that were not identified on the IFP
Application. See Doc. No. 1, F&R at 5
(explaining that “in the bankruptcy schedules and
statements filed two months ago, Dr. Horowitz lists two
limited liability companies with his 50% interests valued at
$60, 000 and $17, 000 respectively, domains and trademarks
valued at $75, 000, as well as accounts receivable, artwork,
jewelry, and musical instruments”).
court has carefully reviewed Horowitz’s Objections to
the F&R. See Doc. No. 3. The court is not
persuaded. Although Appellants certainly have various debts
and other expenses, as demonstrated by their bankruptcy
filing, the court’s independent review of all the
financial information in the record demonstrates that
Appellants fail to qualify for IFP status under §
1915(a). As such, the court agrees with the F&R that the
IFP Application should be denied.
on the foregoing, the court ADOPTS the F&R and DENIES the
IFP Application. If Appellants wish to proceed with their
appeal, they must remit the appropriate filing fee by July
30, 2016. Failure to do ...