Tyler Gamble v. TikTok
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court reviewed a pro se plaintiff's motion to proceed in forma pauperis and a motion to appoint counsel. The court denied the IFP motion for lack of particularity and denied the motion to appoint counsel as moot.
| What the court decided | The model |
|---|---|
Motion to Proceed IFP Denied“Plaintiffs application lacks sufficient particularity. The Court DENIES his motion to proceed IFP.” | agree with court The court correctly applied the standard from Escobedo v. Applebees, which requires a plaintiff to allege poverty with particularity. The order notes that the plaintiff failed to provide employment history or explain expenses, which is a valid basis for finding the affidavit insufficient under 28 U.S.C. § 1915(a). |
Motion to Appoint Counsel Denied“As his IFP application is DENIED, the Court DENIES the motion to appoint counsel as moot.” | agree with court The court relied on Kelly v. FBI to deny the motion as moot. While the logic that a non-IFP plaintiff generally cannot receive court-appointed counsel in a civil case is sound, the order does not explicitly state the legal standard for appointing counsel in civil cases (e.g., that there is no right to counsel in civil cases). However, the result is defensible given the denial of IFP status. |
The order itself: sound — The order correctly identifies the statutory requirements for IFP status and applies the Ninth Circuit standard from Escobedo. It finds the plaintiff's affidavit lacking in particularity regarding expenses and income history, which is a valid factual basis for denial. The denial of counsel as moot is a standard procedural consequence in this district when IFP is denied, though the order could have been more explicit about the lack of a right to counsel in civil cases.
Opinion
1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 TYLER GAMBLE, Case No.: 3:26-cv-5500-CAB-JLB 14 Plaintiff, ORDER: 15 v. (1) DENYING MOTION TO 16 TIKTOK, PROCEED IFP [Doc. No. 2]; 17 Defendant. (2) DENYING MOTION TO 18 APPOINT COUNSEL [Doc. No. 3] 19 20 21 On September 24, 2026, Plaintiff Tyler Gamble, proceeding pro se, sued Defendant 22 Tiktok, for violations of Fraud and Antitrust regulations. [Doc. No. 1 (“Complaint”).] 23 Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the time of 24 filing; instead, he filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 25 § 1915(a). [Doc. No. 2.] Additionally, Plaintiff filed a motion to appoint counsel. [Doc. 26 No. 3.] 27 Generally, all parties instituting a civil action in this Court must pay a filing fee. See 28 28 U.S.C. § 1914(a); CivLR 4.5(a). But under 28 U.S.C. § 1915(a), the Court may | |} authorize any suit’s commencement, prosecution, or defense without payment of fees if the 2 || plaintiff submits an affidavit, including a statement of all his or her assets, showing he or 3 ||she is unable to pay filing fees or costs. “An affidavit in support of an IFP application is 4 ||sufficient where it alleges that the affiant cannot pay the court costs and still afford the 5 ||necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015.) “[A] 6 || plaintiff seeking IFP status must allege poverty with some particularity, definiteness and 7 certainty.” Jd. (internal quotation marks omitted). Granting or denying leave to proceed 8 || IFP in civil cases is within the district court’s sound discretion. Venable v. Meyers, 500 9 || F.2d 1215, 1216 (9th Cir. 1974) (citations omitted). 10 Plaintiff states that he earns $2,800 per month in employment income. [Doc. No. 2 11 1.] However, Plaintiff does not provide his employment history and does not explain 12 ||how he has no other income or expenses, including rent or food. Plaintiffs application 13 ||lacks sufficient particularity. The Court DENIES his motion to proceed IFP. Plaintiff 14 |} must file an amended application by October 28, 2026, or the case shall be DISMISSED. 15 || As his IFP application is DENIED, the Court DENIES the motion to appoint counsel as 16 ||moot. See Kelly v. FBI, No. 23-CV-696-TWR-KSC, 2023 WL 3322590, at *2 (S.D. Cal. 17 || May 9, 2023) (denying motion to appoint counsel as moot where IFP application is denied). 18 It is SO ORDERED. 19 || Dated: September 28, 2026 € 20 Hon. Cathy Ann Bencivengo 21 United States District Judge 22 23 24 25 26 27 28