Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEVIN DANIEL BUTALA, Case No. 26-cv-05101-BAS-JLB 12 Plaintiff, ORDER: 13 v. (1) DENYING WITHOUT PREJUDICE PLAINTIFF’S 14 DCH HONDA TEMECULA, MOTION FOR LEAVE TO 15 Defendant. PROCEED IN FORMA PAUPERIS (ECF No. 2); AND 16 (2) DENYING PLAINTIFF’S 17 MOTION TO APPOINT 18 COUNSEL (ECF No. 3)

21 Pending before the Court are Plaintiff Kevin Daniel Butala’s Motion for Leave to 22 Proceed in Forma Pauperis (ECF No. 2) and Motion to Appoint Counsel (ECF No. 3). For 23 the reasons below, the Court DENIES WITHOUT PREJUDICE Plaintiff’s Motion in 24 Forma Pauperis (ECF No. 2) and DENIES Plaintiff’s Motion to Appoint Counsel (ECF 25 No. 3). 26 I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (ECF No. 2) 27 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay the 28 required fees or security to commence a legal action may petition the court to proceed 1 without making such payment. The determination of indigency falls within the district 2 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) 3 (holding that “Section 1915 typically requires the reviewing court to exercise its sound 4 discretion in determining whether the affiant has satisfied the statute’s requirement of 5 indigency”), rev’d on other grounds, 506 U.S. 194 (1993). It is well-settled that a party 6 need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 7 335 U.S. 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an 8 affidavit [of poverty] is sufficient which states that one cannot because of his poverty pay 9 or give security for costs . . . and still be able to provide himself and dependents with the 10 necessities of life.” Id. at 339. At the same time, however, “the same even-handed care 11 must be employed to assure that federal funds are not squandered to underwrite, at public 12 expense . . . the remonstrances of a suitor who is financially able, in whole or in material 13 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 14 District courts, therefore, tend to reject IFP applications where the applicant can pay 15 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. 16 Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (finding that the district court did not 17 abuse its discretion in requiring a partial fee payment from a prisoner who had a $14.61 18 monthly salary and who received $110 per month from family), vacated in part on other 19 grounds by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). Moreover, “in forma 20 pauperis status may be acquired and lost during the course of litigation.” Wilson v. Dir. of 21 Div. of Adult Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) 22 (citing Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 23 (N.D. Cal. June 29, 1995) (holding that a plaintiff who was initially permitted to proceed 24 in forma pauperis should be required to pay his $120 filing fee out of a $900 settlement). 25 Finally, the facts as to the affiant’s poverty must be stated “with some particularity, 26 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 27 Here, Plaintiff Kevin Daniel Butala’s representations in his form are implausible. 28 For instance, he represents that he has $0 in his total monthly expenses, yet represents he 1 pays $1,000,000 per month towards life insurance. From his current IFP motion, the Court 2 cannot discern whether Plaintiff can afford to pay the filing fee. 3 Plaintiff’s motion is thus, DENIED WITHOUT PREJUDICE. (ECF No. 2.) If 4 Plaintiff wishes to file an amended IFP motion, he must do so by September 18, 2026. 5 Alternatively, Plaintiff may also pay the filing fee. The Court warns Plaintiff that if he 6 does not file an amended IFP motion by September 18, 2026, or pay the filing fee, the 7 Court will direct the Clerk of Court to close the case. 8 II. MOTION TO APPOINT COUNSEL (ECF No. 3) 9 In civil cases, counsel should be appointed only in “exceptional circumstances.” Id. 10 To determine whether exceptional circumstances exist, the court should evaluate two 11 factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the 12 plaintiff to articulate his claims pro se in light of the complexity of legal issues involved. 13 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Neither factor is dispositive, and 14 both must be evaluated together. Id. Further, an attorney cannot be forced to represent an 15 indigent litigant in a civil case—rather, the attorney can only be “appointed” if he or she 16 voluntarily accepts the appointment. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 17 490 U.S. 296, 298 (1989) (holding that the appointment of counsel provision in § 1915, 18 formerly found in subsection (d), does not “authorize[ ] a federal court to require an 19 unwilling attorney to represent an indigent litigant in a civil case”). 20 Here, Plaintiff has not adequately demonstrated any “extraordinary circumstances” 21 warranting appointment of counsel. See Olson v. Smith, 609 Fed. Appx. 370, 373 (9th Cir. 22 2015), cert. denied, 136 S.Ct. 1165 (2016) (disabilities); see also Signorelli v. Hughes, 363 23 Fed. Appx. 455, 456 (9th Cir. 2010); (disabilities); Bolton v. Towing, No. 24 523CV00941JLSAJR, 2023 WL 8168951, at *1 (C.D. Cal. Nov. 9, 2023) (homelessness); 25 Webb v. NaphCare, Inc., 2022 WL 2192977, at *2 (W.D. Wash. Jun. 16, 2022) 26 (homelessness and indigence). Moreover, the Court is unable to evaluate the likelihood of 27 success on the merits of the case at this early stage in the proceedings. 28 l Accordingly, the Court DENIES Plaintiffs’ motion for appointment of counsel 2 || (ECF No. 3). 3 CONCLUSION 4 For the reasons above, the Court DENIES WITHOUT PREJUDICE □□□□□□□□□□□ 5 || Motion in Forma Pauperis. (ECF No. 2.) If Plaintiff wishes to file an amended IFP motion, 6 || he must do so by September 18, 2026. Alternatively, Plaintiff may also pay the filing fee. 7 || The Court warns Plaintiff that if he does not file an amended IFP motion by September 8 || 18, 2026, or pay the filing fee, the Court will direct the Clerk of Court to close the case. 9 The Court also DENIES Plaintiff's Motion to Appoint Counsel (ECF No. 3). 10 IT IS SO ORDERED. 11 12 || DATED: September 11, 2026 (yi. (Duhark B H n. Cynthia Bashant, Chief Judge United States District Court 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4A.