Tyler Gamble v. Apple, Inc.
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court considered a pro se plaintiff's motion to proceed in forma pauperis (IFP) and a motion to appoint counsel. The court denied the IFP motion for lack of particularity, ordered the plaintiff to file an amended application or face dismissal, and denied the motion to appoint counsel as moot.
| What the court decided | The model |
|---|---|
Motion to Proceed IFP Denied“Plaintiff's 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, requiring a plaintiff to allege poverty with particularity. The plaintiff's affidavit stated a monthly income but failed to list expenses or other assets, which is insufficient to demonstrate an inability to pay court costs while maintaining necessities of life. The denial is supported by the record recited in the order. |
Motion to Appoint Counsel Denied“As his IFP application is DENIED, the Court DENIES the motion to appoint counsel as moot.” | agree with court In the context of a civil case where the plaintiff has not yet been granted IFP status, the court's discretion to appoint counsel is often tied to the IFP determination or the merits of the case. Denying the motion as moot because the underlying IFP status was denied is a procedural mechanism consistent with the cited district court authority (Kelly v. FBI). |
The order itself: sound — The order correctly identifies the statutory requirements for IFP status and applies the Ninth Circuit precedent (Escobedo) requiring particularity in the affidavit. The court notes specific deficiencies in the plaintiff's affidavit (lack of expense details) and provides a clear deadline for amendment. The denial of counsel as moot is procedurally consistent with the denial of IFP status in this context.
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-5501-CAB-DDL 14 Plaintiff, ORDER: 15 v. (1) DENYING MOTION TO 16 APPLE, INC., 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 Covarrubias, proceeding pro se, 22 sued Defendant Apple, Inc., for allegedly violating his intellectual property rights and 23 harassing him. [Doc. No. 1 (“Complaint”).] Plaintiff did not prepay the civil filing fees 24 required by 28 U.S.C. § 1914(a) at the time of filing; instead, he filed a motion to proceed 25 in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). [Doc. No. 2.] Additionally, 26 Plaintiff filed a motion to appoint counsel. [Doc. 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. Plaintiff's application 13 || lacks sufficient particularity. The Court DENIES his motion to proceed IFP. Plaintiff must 14 || file an amended application by October 28, 2026, or the case shall be DISMISSED. As 15 || his IFP application is DENIED, the Court DENIES the motion to appoint counsel as moot. 16 || See Kelly v. FBI, No. 23-CV-696-TWR-KSC, 2023 WL 3322590, at *2 (S.D. Cal. May 9, 17 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