Burns v. Gore

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LAMONT BURNS, Case No.: 25-CV-1258 JLS (AHG)

12 Plaintiff, ORDER (1) DENYING WITHOUT 13 v. PREJUDICE PLAINTIFF’S APPLICATION TO PROCEED IN 14 SHERIFF GORE, et al., DISTRICT COURT WITHOUT 15 Defendants. PREPAYING FEES OR COSTS AND (2) DISMISSING WITHOUT 16 PREJUDICE PLAINTIFF’S 17 COMPLAINT 18 (ECF No. 2) 19 20 21 22 Presently before the Court is Plaintiff Lamont Burns’s Complaint (“Compl.,” ECF 23 No. 1) and Application to Proceed in District Court Without Prepaying Fees or Costs (“IFP 24 Appl.,” ECF No. 2). Having carefully considered Plaintiff’s Complaint, Application, and 25 the applicable law, the Court DENIES WITHOUT PREJUDICE Plaintiff’s IFP 26 Application and DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint. 27 / / / 28 / / / 1 IN FORMA PAUPERIS APPLICATION 2 All parties instituting a civil action, suit, or proceeding in a district court of the 3 United States, other than a petition for writ of habeas corpus, must pay a filing fee of $405.1 4 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee 5 only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 6 § 1915(a)(1). 7 Section 1915(a)(1) provides: 8 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or 9 proceeding . . . without prepayment of fees or security therefor, 10 by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay 11 such fees or give security therefor. 12 13 As § 1915(a)(1) does not itself define what constitutes insufficient assets to warrant IFP 14 status, the determination of indigency falls within the district court’s discretion. See Cal. 15 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 1915 typically 16 requires the reviewing court to exercise its sound discretion in determining whether the 17 affiant has satisfied the statute’s requirement of indigency.”), reversed on other grounds 18 by, 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient where 19 it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 20 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont 21 de Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely destitute to 22 obtain benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 23 1960). “Nevertheless, a plaintiff seeking IFP status must allege poverty ‘with some 24 particularity, definiteness[,] and certainty.’” Escobedo, 787 F.3d at 1234. 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. 28 Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted leave to proceed 1 The Court cannot find that Plaintiff has alleged with sufficient certainty that he 2 would be unable to afford the necessities of life should he be required to pay the requisite 3 filing fee. Plaintiff indicates that his monthly income consists of $900 from employment, 4 but he then leaves the section of the IFP Application blank that asks Plaintiff to list his 5 employment history for the past two years. IFP Appl. at 1–2. And despite listing his 6 monthly income from employment as $900, Plaintiff otherwise leaves the remainder of the 7 income section of the IFP Application blank, calculating at the end of the section that his 8 total monthly income is $0. Id. at 2. Plaintiff then leaves blanks the following two sections, 9 which ask for, respectively, his spouse’s employment history and the amount of cash 10 Plaintiff has in bank accounts or other financial institutions. Id. Plaintiff also lists monthly 11 expenses of $600 for rent and $600 for recreation, entertainment, newspapers, magazines, 12 etc., but he then calculates at the end of the expenses section that he has $0 in total monthly 13 expenses. Id. at 4–5. Finally, Plaintiff indicates in question nine that he expects a major 14 change to his monthly income, expenses, assets, or liabilities during the next twelve 15 months, but he then fails to describe that expected change on an attached sheet as is 16 required by the instructions. Id. at 5. 17 “Without further explanation, ‘[i]t is not apparent how Plaintiff is obtaining the 18 necessities of life, and in turn whether this source of funds—if it exists—can cover the 19 required filing fee in this action.’” Turner v. City of San Diego, 20 No. 23-CV-29 TWR (NLS), 2023 WL 163492, at *1 (S.D. Cal. Jan. 10, 2023) (quoting 21 Herta v. Wiblemo, No. 22-CV-1679-BAS-BGS, 2022 WL 17573923, at *2 (S.D. Cal. 22 Nov. 7, 2022)). Given the internal inconsistencies presented by Plaintiff’s IFP Application 23 and the lack of detail Plaintiff provides regarding his income and expenses, the Court finds 24 that Plaintiff has not satisfied his burden to show that his financial condition warrants 25 lifting the filing fee requirement. Accordingly, the Court DENIES Plaintiff’s IFP 26 Application. Said denial, however, is WITHOUT PREJUDICE to Plaintiff refiling an 27 IFP application that cures the above-noted deficiencies. If Plaintiff wishes to refile his IFP 28 application, he “should note that the IFP application specifically instructs applicants not to 1 leave any blanks, and to instead response [sic] ‘0,’ ‘none,’ or ‘not applicable (N/A)’ as 2 ||necessary.” Herta, 2022 WL 17573923, at *2. 3 CONCLUSION 4 In light of the foregoing, IT IS HEREBY ORDERED that: 5 1. Plaintiffs IFP Application (ECF No.2) is DENIED WITHOUT 6 || PREJUDICE; 7 2. Plaintiffs Complaint (ECF No. 1) is DISMISSED WITHOUT 8 || PREJUDICE for failure to prepay the filing fee mandated by 28 U.S.C. § 1914(a); and 9 3. Plaintiff is GRANTED an additional thirty (30) days from the date on which 10 Order is electronically docketed to either (1) pay the entire $405 statutory and 11 || administrative filing fee, or (2) file a new IFP application alleging that he is unable to pay 12 |/the requisite fee. Should Plaintiff fail to either pay the filing fee or file a new IFP 13 || application, the Court will convert this dismissal of Plaintiff’s Complaint into dismissal 14 || of this civil action without prejudice. 15 IT IS SO ORDERED. 16 Dated: July 9, 2025 psi AL. brmonaitenue- 17 on. Janis L. Sammartino 18 United States District Judge 19 20 21 22 23 24 25 26 27 28