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 PREPAYMENT OF FEES
MICHAEL SEABRIGHT, Chief District 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. Â§
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 omitted)).
reviewing a motion filed pursuant to Â§ 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 Â§ 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. Â§ 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
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. Â§ 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 Â§ 1915(a). As such, the court
agrees with the F&R that the IFP Application should be
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 ...