Marner v. U.S. Department of the Air Force
- Proceeding
- district
- Area
- civil
- Panel
- Jinsook Ohta (author)
Analysis
The court reviewed a pro se plaintiff's motion to proceed in forma pauperis (IFP) and a motion to appoint counsel, finding that the plaintiff's affidavit demonstrated an ability to pay the filing fee. The court denied the IFP motion without prejudice, denied the motion to appoint counsel as moot, and dismissed the action without prejudice for failure to pay the filing fee.
| What the court decided | The model |
|---|---|
Denial of motion to proceed in forma pauperis (IFP)“Accordingly, the Court DENIES Plaintiff's motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) without prejudice, Dkt. 2” | agree with court The plaintiff's affidavit explicitly stated he was employed, earned $6,524 per month, and possessed over $380,000 in assets. Under 28 U.S.C. § 1915(a), a plaintiff must demonstrate an inability to pay. The court correctly applied the standard from Escobedo v. Applebees, which requires an allegation that the plaintiff cannot pay costs and still afford necessities of life. Given the high income and asset levels recited in the order, the plaintiff clearly failed to meet this burden. |
Denial of motion to appoint counsel“and DENIES Plaintiff's motion to appoint counsel, Dkt. 3, as moot.” | agree with court The motion to appoint counsel was likely contingent on the plaintiff's ability to proceed IFP or was otherwise linked to the initial filing status. Since the IFP motion was denied, the basis for the motion to appoint counsel in this context became moot. This is a standard procedural consequence. |
Dismissal of civil action without prejudice“Accordingly, the Court also DISMISSES this civil action without prejudice for failure to pay the $405 filing fee. Dkt. 1.” | agree with court Federal courts lack jurisdiction over civil cases where the filing fee is not paid and IFP status is not granted. 28 U.S.C. § 1915(a) and Local Civil Rule 4.5 require payment. Since the IFP motion was denied, the plaintiff was required to pay the fee. The dismissal without prejudice allows the plaintiff to refile if they pay the fee, which is the correct procedural remedy. |
The order itself: sound — The order correctly identifies the statutory and local rule requirements for IFP status. It cites the appropriate Ninth Circuit precedent (Escobedo) defining the sufficiency of an affidavit. The factual findings (income and assets) are explicitly stated in the order and clearly contradict the requirement of inability to pay. The dismissal without prejudice is the standard procedural outcome when a plaintiff fails to pay the filing fee after IFP is denied.
Opinion
1 2
8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10
11 ZACHARY MARNER et al, Case No.: 3:24-cv-01565-JO-BLM 12 Plaintiffs, 13 ORDER DENYING LEAVE TO vs. PROCEED IFP 14 U.S. DEPARTMENT OF THE AIR 15 FORCE et al, 16 Defendants. 17 18 On September 3, 2024, pro se Plaintiff Zachary Marner,1 filed a complaint against 19 the United States Air Force2 and the United States Space Force. Dkt. 1. Plaintiff alleges 20 that these two Defendants harmed him in various ways, from slandering and sexually 21 assaulting him to murdering his loved ones. Id. Accompanying his complaint, Plaintiff 22 also filed a motion to proceed in forma pauperis (“IFP”), Dkt. 2, and motion to appoint 23 24 25 1 Plaintiff Marner also listed Jeanette Miller, Nevah Marner, Taryn White, Phyllis Sharp, and 26 Tiffany Stroh as additional Plaintiffs in this case. Dkt. 1.
27 2 Plaintiff names the “Department of the U.S. Air Force” as one of the three Defendants in this case. Dkt. 1. For the purposes of this order, the Court construes the Department of the U.S. Air Force 28 1 |/counsel, Dkt. 3. For the reasons set forth below, the Court denies Plaintiff's IFP motion 2 || without prejudice and denies Plaintiff's motion to appoint counsel as moot. 3 Plaintiff has not prepaid the civil filing fee and instead has requested to proceed IFP. 4 ||Dkt. 2. A plaintiff filing a civil suit in federal district court must pay a filing fee of $405 5 ||unless the court waives this fee and allows him to proceed IFP based on his inability to 6 28 U.S.C. § 1914(a); Local Civ. R. 4.5. To proceed IFP, a claimant must submit an 7 || affidavit that includes a statement of all assets and demonstrates an inability to pay the 8 || filing fee. /d.; see also Local Civ. R. 3.2. An affidavit is “sufficient where it alleges that 9 || the plaintiff cannot pay the court costs and still afford the necessities of life.” Escobedo v. 10 || Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citation omitted). “The granting or 11 ||refusing of permission to proceed [IFP] is a matter committed to the sound discretion of 12 || the district court.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). 13 Here, Plaintiff indicates in his affidavit that he is employed, makes a total of $6,524 14 |/per month, and has $15,216 in cash and over $380,000 in assets. Dkt. 2. The Court 15 ||therefore finds that Plaintiff has not “sufficiently show[n] that he lacks the financial 16 |/resources to pay filing fees.” Dillard v. So, No. 12-2958, 2013 WL 4857692, at *1 (S.D. 17 || Cal. Sept. 11, 2013). Accordingly, the Court DENIES Plaintiff's motion to proceed IFP 18 || pursuant to 28 U.S.C. § 1915(a) without prejudice, Dkt. 2, and DENIES Plaintiff's motion 19 || to appoint counsel, Dkt. 3, as moot. 20 Accordingly, the Court also DISMISSES this civil action without prejudice for 21 || failure to pay the $405 filing fee. Dkt. 1. If Plaintiff does not pay the filing fee by February 22 || 17, 2025, the Court will dismiss Plaintiff's complaint and order the Clerk of the Court to 23 || close this case. 24 IT IS SO ORDERED. 25 ||Dated: January 30, 2025 Qe 26 27 Honorable Jinsook Ohta United States District Judge