Robert Matthew Elmore v. Bank of America
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
Plaintiff Robert Matthew Elmore filed a motion to proceed in forma pauperis (IFP) alongside a complaint against Bank of America. The court denied the motion without prejudice, finding the affidavit insufficient because it failed to explain how the plaintiff sustains himself despite reporting zero income and expenses.
| What the court decided | The model |
|---|---|
Motion to Proceed In Forma Pauperis (ECF No. 2) denied without prejudice“The motion is DENIED WITHOUT PREJUDICE.” | agree with court The court correctly applied the requirement that IFP affidavits must state facts with 'particularity, definiteness, and certainty.' The plaintiff's affidavit contained internal contradictions (zero income/expenses but living existence) and failed to disclose potential sources of support, making it impossible for the court to determine indigency. Denying without prejudice is the appropriate procedural mechanism to allow the plaintiff to cure the deficiency. |
The order itself: sound — The order is procedurally sound. It correctly identifies the legal standard for IFP petitions, specifically the need for particularity in the affidavit. The court's observation that a person with $0 income and $0 expenses is logically inconsistent with being alive and litigating is a valid basis for finding the affidavit insufficient. The denial without prejudice provides the plaintiff an opportunity to cure the defect, which is the standard remedy for an incomplete IFP affidavit.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT MATTHEW ELMORE, Case No. 25-cv-3348-BAS-BLM 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO PROCEED IN FORMA PAUPERIS (ECF No. 2) 14 BANK OF AMERICA, 15 Defendant. 16 Plaintiff Robert Matthew Elmore filed a complaint against Bank of America (ECF 17 No. 1) and a motion to proceed in forma pauperis (“IFP”) (ECF No. 2) on the same day. 18 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay the 19 required fees or security to commence a legal action may petition the court to proceed 20 without making such payment. The determination of indigency falls within the district 21 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d 22 on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915 typically requires the 23 reviewing court to exercise its sound discretion in determining whether the affiant has 24 satisfied the statute’s requirement of indigency”). It is well-settled that a party need not be 25 completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 26 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of 27 28 | poverty] is sufficient which states that one cannot because of his poverty pay or give 2 ||security for costs ... and still be able to provide himself and dependents with the necessities 3 llof life.” /d. at 339. At the same time, however, “the same even-handed care must be 4 ||employed to assure that federal funds are not squandered to underwrite, at public expense 5 ||... the remonstrances of a suitor who is financially able, in whole or in material part, to 6 || pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Finally, the 7 || facts as to the affiant’s poverty must be stated “with some particularity, definiteness, and 8 || certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 9 Here, the Court concludes that there is insufficient information to determine whether 10 || Plaintiff should be permitted to proceed IFP. Plaintiff lists that he has $0 in income, $0 11 |}expected income, no assets, and no monthly expenses. Plaintiff does not indicate any 12 ||streams of income, including state or federal financial aid. Plaintiff also does not indicate 13 || whether someone else is financially supporting him. Plaintiff must have some way to pay 14 || for living expenses. Without further explanation, the current IFP motion (ECF No. 2) is 15 insufficient. The motion is DENIED WITHOUT PREJUDICE. 16 If Plaintiff wishes to file an amended IFP motion, he must do so by December 11, 17 ||2025. Alternatively, Plaintiff may pay the filing fee. The Court warns Plaintiff that if he 18 || does not file an amended IFP motion by December 11, 2025, or pay the filing fee, the 19 || Court will direct the Clerk of Court to close the case. 20 IT IS SO ORDERED. 21 22 ||DATED: December 2, 2025 (yatta Bahan ke 73 H n. Cynthia Bashant, Chief Judge United States District Court 24 25 26 27 28