Strojnik v. Panera Bread Co.

• Decision Date: 23 June 2022
• Docket Number: 1:22-cv-00682-JLT-BAK (SAB)
• Parties: PETER STROJNIK, Plaintiff, v. PANERA BREAD COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of California

PETER STROJNIK, Plaintiff,
v.
PANERA BREAD COMPANY, Defendant.

No. 1:22-cv-00682-JLT-BAK (SAB)

United States District Court, E.D. California

June 23, 2022

FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REQUIRING PLAINTIFF TO PAY THE FILING FEE

(ECF NO. 3)

FOURTEEN DAY DEADLINE

I.

BACKGROUND

Plaintiff Peter Strojnik (“Plaintiff”), proceeding pro se,^[1] filed this civil action on June 6, 2022. (ECF No. 1.) The verified complaint asserts violations of (1) the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.; (2) the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51-53;

1

and (3) the Disabled Persons Act, Cal. Civ. Code §§ 54-54.3. Plaintiff did not pay the filing fee in this action and instead filed a long form application to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 (ECF No. 3 at 1-5), supplemented by a “Verified Notice of Submission of Long Form IFP (Form AO 239) with Explanatory Notes” (ECF No. 3 at 6-10), all of which are currently before the Court.

II.

LEGAL STANDARD

The right to proceed without prepayment of fees in a civil case is a privilege and not a right. Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 198 n.2 (1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“permission to proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis status does not violate the applicant's right to due process”).

In order to proceed in court without prepayment of the filing fee, a plaintiff must submit an affidavit demonstrating that he “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). A plaintiff need not be absolutely destitute to proceed IFP, but his poverty must prevent him from paying the filing fee and providing himself and his dependents (if any) with the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). The Court is entitled to consider the economic priority Plaintiff placed on the use of his money, received from any source. Evans v. Sherman, No. 1:19-cv-00760-LJO-JLT (PC), 2019 WL 5377040, at *2 (E.D. Cal. Aug. 21, 2019) (citing Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995)); see also Kurz v. Zahn, No. 1:11-cv-00342-EJL-MHW, 2012 WL 4458128, at *2 (D. Idaho Apr. 13, 2012) (“Nor can all the items included on her list of monthly obligations, even generously construed, be considered as the ‘necessaries of life.' ”). That is, when considering applications to proceed IFP, the Court is entitled to consider a plaintiff's economic choices about how to spend his money and whether he considered other expenditures more worthwhile than payment of a federal court's filing fee. See Olivares, 59 F.3d at 112 (quoting Lumbert v. Ill. Dept. of Corr., 827 F.2d 257, 260 (7th Cir. 1987) (noting peanut and candy “comforts” plaintiff purchased in the prison commissary: “if the inmate thinks a more worthwhile use of his funds

2

would be to buy peanuts and candy . . . than to file a civil rights suit, he has demonstrated an implied evaluation of the suit that the district court is entitled to honor.”)).

Furthermore, “[i]t is the duty of the District Court to examine any application for leave to proceed in forma pauperis to determine whether the proposed proceeding has merit and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (citations omitted). Thus, in considering a motion to proceed IFP, “even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar.” Kuhne-Irigoyen v. Gonzalez, No. 1:18-cv-01011-DAD-SKO, 2018 WL 3816732, at *3 (E.D. Cal. Aug. 9, 2018) (citing Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984); Brewster v. N. Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972)); see also 28 U.S.C. § 1915(e)(2) (court shall dismiss case at any time if it determines the allegation of poverty is untrue, or the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune).

Finally, whether to grant or deny an application to proceed without prepayment of fees is an exercise of the district court's discretion. Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015); see also U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (the court has discretion to make a factual inquiry into a plaintiff's financial status and deny an IFP application if she is unable or unwilling to verify her poverty).

Based on his application and the judicially noticeable facts discussed herein, the Court concludes Plaintiff is not entitled to proceed without prepayment of fees in this action.

III.

DISCUSSION

A. Summary of IFP Application and Declaration

Here, Plaintiff's application reflects purported monthly expenses of $23,400.70, which far exceed his purported monthly income of $1,249.30. More specifically, the only source of income

3

Plaintiff claims is a monthly retirement of $1,249.30 (i.e., annual income $14,991.60)^[2](ECF No. 3 at 1-2.) Where required to list his employment history for the past two years, Plaintiff states “NA” and lists zero income. (Id. at 2.) Plaintiff identifies three checking accounts, which hold a sum total of $53.72, and in the section designated to list any assets owned by Plaintiff and their values, Plaintiff indicates he has no home, he has no motor vehicle, and his only assets are his HP laptop and cell phone, collectively valued at $500.00. (Id. at 2-3, 9.) Meanwhile, Plaintiff claims the following monthly expenses: rent/mortgage payments of $7,589.00; lease payments for a 2019 BMW 530e of $811.70; and alimony payments of $15,000. (Id. at 4.) Based on his application, Plaintiff purportedly has zero expenses for utilities (which includes electricity, heating fuel, water, sewer and telephone), home maintenance, food, clothing, laundry and drycleaning, medical and dental expenses, transportation, recreation, entertainment, newspapers, magazines, etc., insurance (including homeowner's or renter's, life, health, motor vehicle, and “other”), taxes, or regular expenses for operation of business, profession, or farm. (Id. at 4.)

In his “explanatory notes,” Plaintiff's story begins in 1975, when he first married. (ECF No. 3 at 6.) In 2013, Plaintiff divorced and through the marital settlement agreement was ordered to pay $20,000 per month in spousal support for life. (ECF No. 3 at 6.) Apparently, the ex-wife kept the house. (See ECF No. 3 at 6-7.) Per the same agreement, Plaintiff would continue to live with his ex-wife and pay monthly “room and board” expenses of $7,589.00, which was calculated on “fair market value.” (Id. at 6-7.) Plaintiff lists this expense under the “rent or home-mortgage payment” category, but maintains the expense “includes all subcategories [of expenses on the IFP application].” (Id. at 6-7.)

In 2016, Plaintiff decided to commence providing pro bono services to disabled clients. (Id. at 7.) He does not specify whether he provided only pro bono services at this time, or if he provided services for regular paying clients as well. Plaintiff also avers that from 2016-2017, he represented disabled clients and donated all of his fees to a 501(c)(3) organization for the

4

disabled. Thereafter,^[3] Plaintiff purportedly chose to resign from the State Bar and agreed to “consensual disbarment” based on the “dysfunctional view of civil rights” held by the Arizona State Bar and Arizona Attorney General, and their nefarious “strategy” to file bar complaints with various ADA-offending public accommodations against Plaintiff. (See id. at 7-8.) At some unspecified time after his disbarment, Plaintiff vaguely avers his “financial condition deteriorated precipitously,” and he “was unable to meet his spousal maintenance, room and board and tax obligations.” (Id. at 8.) Plaintiff never identifies his salary pre-disbarment, nor does he specify how much his “financial condition deteriorated.” In any event, Plaintiff's income was apparently only affected insomuch that, on March 11, 2021, the family court reduced Plaintiff's monthly spousal payment amount from $20,000 to $15,000. (Id. at 8.)

At some date which he does not specify,^[4] Plaintiff “continued his civil rights work as a pro-se litigant in Arizona and California.” (Id. at 8; see also, e.g., Strojnik v. Express, LLC, No. 22-cv-00452-TWR-AHG (S.D. Cal. Apr. 4, 2022) (in his ADA complaint, Plaintiff refers to himself as an “ADA tester”).) But in late 2021, Plaintiff claims he dismissed all his pending cases due to contracting COVID-19 and needing to recuperate. (ECF No. 3 at 9.) Finally, as to his most recent finances (as of May 2022), Plaintiff supplements his IFP application with the following information on income and expenses: Between April 2021-2022, Plaintiff received $61,536.19 for previously-filed cases.^[5] (ECF No. 3 at 9.) And Plaintiff avers current debts totaling over $1.5 million and consisting of: (1) spousal maintenance arrearages in the amount of $659,676; (2) room and board arrearages of $249,848; (3) an IRS Lien in the amount of $475,663; and (4) “various judgments [of] (at least)” $200,000. (Id. at 9.) Based on these debts, Plaintiff claims he is in “permanent insolvency status.” (Id.)

5

B. Application Inconsistencies Warrant Denial of IFP

From a commonsense standpoint, Plaintiff's application is rife with internal inconsistencies that are not sufficiently explained, even with Plaintiff's “explanatory notes.” The Court first addresses Plaintiff's comment that his room and board expense...