McCully v. Housing Authority of the County of San Diego
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
Plaintiff Rose McCully filed a Fair Housing Act complaint and a motion to proceed in forma pauperis (IFP) in the Southern District of California. The court denied the IFP motion without prejudice, finding the affidavit insufficient to demonstrate an inability to pay, and ordered the plaintiff to pay the filing fee or file a renewed motion by August 28, 2025, or face dismissal.
| What the court decided | The model |
|---|---|
Motion to Proceed In Forma Pauperis Denied“Therefore, Plaintiff's motion to proceed IFP is DENIED without prejudice.” | agree with court The court correctly applied the standard from Escobedo v. Applebees, requiring a plaintiff to allege poverty with particularity. The order recites that the plaintiff left several material questions on the IFP affidavit blank (assets, debts, dependents) and stated a monthly income ($2,768) that exceeds the filing fee ($405). Denying the motion without prejudice and allowing a cure is consistent with the district court's discretion under 28 U.S.C. § 1915 and Ninth Circuit precedent. |
The order itself: sound — The order is procedurally sound. It correctly identifies the legal standard for IFP applications in the Ninth Circuit, applies the facts recited in the affidavit (income vs. fee, missing answers) to that standard, and provides a clear path for the plaintiff to cure the deficiency. It does not skip any necessary legal arguments for this specific procedural motion.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Rose McCully, Case No.: 3:25-cv-01843-CAB-DDL 12 Plaintiff, ORDER DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS 14 Housing Authority of the County of San [Doc. No. 2] Diego, Ursula Mai, Salvatore Lupo, 15 Parker Properties, Terri Parker, Cassandra 16 Mills, CSA San Diego County Fair Housing, and George Ibarra, 17 Defendants. 18 19 On July 18, 2025, Plaintiff Rose McCully filed a complaint pursuant to the Fair 20 Housing Act. [Doc. No. 1.] Plaintiff also filed a motion to proceed in forma pauperis 21 ("IFP"). [ Doc. No. 2.] For the following reasons, Plaintiff's motion is DENIED. 22 I. Motion to Proceed IFP 23 Generally, all parties instituting a civil action in this court must pay a filing fee. See 24 28 U.S.C. § 1914(a); CivLR 4.5(a). But the Court may authorize a party to proceed without 25 paying the fee if that party submits an affidavit demonstrating an inability to pay. 28 U.S.C. 26 §1915(a). "An affidavit in support of an IFP application is sufficient where it alleges that 27 the affiant cannot pay the court costs and still afford the necessities of life." Escobedo v. 28 1 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). "[A] plaintiff seeking IFP status must 2 allege poverty with some particularity, definiteness and certainty." Id. (internal quotation 3 marks omitted). Granting or denying leave to proceed IFP in civil cases is within the 4 district court’s sound discretion. Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974). 5 In her motion, Plaintiff claims to have a gross monthly income of $2,768, $700 in 6 cash, and total monthly expenses of $1,675. [Doc. No. 2, Questions 1, 2, and 8.] Plaintiff 7 fails to respond to the questions that asks Plaintiff to list assets owned. [Doc. No. 2, 8 Question 5.] Further, Plaintiff fails to respond to the questions that asks Plaintiff to state 9 any money owed to her and to state any persons who rely on her. [Doc. No. 2, Questions 10 6-7.] 11 Given Plaintiff's monthly income and declared amount in cash, it appears Plaintiff 12 can pay the $405.00 filing fee in this case. Nevertheless, if Plaintiff believes that the Court 13 should consider her additional financial obligations that she did not state in her affidavit, 14 she may submit an amended application listing such obligations. 15 II. Conclusion 16 Based on the lack of "particularity, definiteness and certainty" in the information 17 provided, the Court is not persuaded that Plaintiff lacks the funds to pay the filing fee and 18 "still afford the necessities of life." Escobedo, 787 F.3d at 1234. Therefore, Plaintiff's 19 motion to proceed IFP is DENIED without prejudice. 20 Plaintiff shall have until August 28, 2025 to either pay the filing fee or file a new 21 motion to proceed IFP that provides with "particularity, definiteness, and certainty" the 22 required information. In particular, Plaintiff shall respond truthfully to Questions 3, 4, 5, 23 6, 7, and 8. If Plaintiff does not pay the filing fee or file a renewed motion to proceed in 24 forma pauperis by August 28, 2025, the Clerk of the Court shall dismiss the case without 25 // 26 // 27 // 28 // 1 || prejudice and terminate the action. 2 Itis SO ORDERED. 3 Dated: July 28, 2025 € Z 4 Hon. Cathy Ann Bencivengo 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28