Scott Desrosiers v. Mildred Garcia, et al.
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
Plaintiff Scott Desrosiers moved for leave to proceed in forma pauperis, representing a monthly income of $2,900 and monthly expenses of $2,558. The court denied the motion without prejudice, finding that the plaintiff's income exceeds his expenses, and ordered him to file an amended motion or pay the filing fee by May 18, 2026, or the case will be closed.
| What the court decided | The model |
|---|---|
Motion for Leave to Proceed In Forma Pauperis denied without prejudice“Plaintiff’s motion is thus, DENIED WITHOUT PREJUDICE. (ECF No. 2.)” | agree with court The court applied the standard that a party need not be destitute but must show inability to pay fees without sacrificing necessities of life. The plaintiff's affidavit shows a monthly surplus of $342 ($2,900 income - $2,558 expenses). Under the cited authority (Dorn-Kerri), when total monthly expenses are less than total monthly income, the request to proceed IFP is properly denied. The denial without prejudice allows the plaintiff to amend if circumstances change or to pay the fee, which is a standard procedural outcome for insufficient IFP showings. |
The order itself: sound — The order correctly identifies the legal standard for IFP status and applies it to the specific financial figures provided by the plaintiff. The plaintiff's reported income exceeds his reported expenses, which is a sufficient basis to deny the motion under the cited precedent. The order provides a clear path forward (amend or pay) and a deadline for compliance.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SCOTT DESROSIERS, Case No. 26-cv-02111-BAS-DEB 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 14 MILDRED GARCIA, et. al, (ECF No. 4) 15 Defendants.
17 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay the 18 required fees or security to commence a legal action may petition the court to proceed 19 without making such payment. The determination of indigency falls within the district 20 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) 21 (holding that “Section 1915 typically requires the reviewing court to exercise its sound 22 discretion in determining whether the affiant has satisfied the statute’s requirement of 23 indigency”), rev’d on other grounds, 506 U.S. 194 (1993). It is well-settled that a party 24 need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 25 335 U.S. 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an 26 affidavit [of poverty] is sufficient which states that one cannot because of his poverty pay 27 or give security for costs . . . and still be able to provide himself and dependents with the 28 necessities of life.” Id. at 339. At the same time, however, “the same even-handed care 1 must be employed to assure that federal funds are not squandered to underwrite, at public 2 expense . . . the remonstrances of a suitor who is financially able, in whole or in material 3 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 4 District courts, therefore, tend to reject IFP applications where the applicant can pay 5 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey, 6 841 F. Supp. 316, 321 (N.D. Cal. 1994) (finding that the district court did not abuse its 7 discretion in requiring a partial fee payment from a prisoner who had a $14.61 monthly 8 salary and who received $110 per month from family), vacated in part on other grounds 9 by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). Moreover, “in forma pauperis status 10 may be acquired and lost during the course of litigation.” Wilson v. Dir. of Div. of Adult 11 Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing 12 Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. 13 Cal. June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma 14 pauperis should be required to pay his $120 filing fee out of a $900 settlement). Finally, 15 the facts as to the affiant’s poverty must be stated “with some particularity, definiteness, 16 and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 17 Here, Plaintiff Scott Desrosiers represents that his average monthly income for the 18 past twelve months is $2,900 per month. (ECF No. 4 at 2.) Plaintiff also represents that 19 his total monthly expenses are $2,558 per month. (Id. at 5.) The fact that Plaintiff’s 20 monthly salary for the past twelve months far exceeds his monthly expenses is sufficient 21 basis for the Court to deny Plaintiff’s motion for in forma pauperis. See Dorn-Kerri v. S. 22 W. Cancer Care, No. CIV. 06CV1754 (NLS), 2009 WL 635716, at *1 (S.D. Cal. Mar. 9, 23 2009), aff'd sub nom. Dorn-Kerri v. Sw. Cancer Care, 385 F. App'x 643 (9th Cir. 2010) 24 (“Given that the total monthly expenses are less than the total monthly family income, the 25 Court denies Plaintiff's request to proceed in forma pauperis.”). 26 Plaintiff’s motion is thus, DENIED WITHOUT PREJUDICE. (ECF No. 2.) If 27 Plaintiff wishes to file an amended IFP motion, he must do so by May 18, 2026. 28 Alternatively, Plaintiff may also pay the filing fee. The Court warns Plaintiff that if he 1 || does not file an amended IFP motion by May 18, 2026, or pay the filing fee, the Court will 2 || direct the Clerk of Court to close the case. 3 IT IS SO ORDERED. 4 ~ 5 || DATED: May 4, 2026 (yatta Baphar □□ 6 H n. Cynthia Bashant, Chief Judge United States District Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Cites, in this corpus
- Diane Dorn-Kerri v. Southwest Cancer Care 09-55066 · 2010-06-22