Gastelum v. M5 Dev LLC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FERNANDO GASTELUM, Case No. 21-cv-01255-BAS-AHG 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 14 M5 DEV LLC, (ECF No. 2) 15 Defendant.

16 17 18 On July 12, 2021, Plaintiff Fernando Gastelum filed this action against Defendant 19 M5 dev LLC claiming violations of the Americans with Disabilities Act and certain 20 California laws. On the same day, Plaintiff filed a motion seeking leave to proceed in 21 forma pauperis (“IFP”). (IFP Mot., ECF No. 2.) For the reasons outlined below, the Court 22 DENIES Plaintiff leave to proceed IFP. 23 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay the 24 required fees or security to commence a legal action may petition the court to proceed 25 without making such payment. The determination of indigency falls within the district 26 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d 27 on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915 typically requires the 28 reviewing court to exercise its sound discretion in determining whether the affiant has 1 satisfied the statute’s requirement of indigency”). It is well-settled that a party need not be 2 completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 3 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of 4 poverty] is sufficient which states that one cannot because of his poverty pay or give 5 security for costs . . . and still be able to provide himself and dependents with the necessities 6 of life.” Id. at 339. At the same time, however, “the same even-handed care must be 7 employed to assure that federal funds are not squandered to underwrite, at public expense 8 . . . the remonstrances of a suitor who is financially able, in whole or in material part, to 9 pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 10 District courts, therefore, tend to reject IFP applications where the applicant can pay 11 the filing fee with acceptable sacrifice to other expenses. See Skylar v. Saul, No. 12 19CV1581-NLS, 2019 WL 4039650, at *3 (S.D. Cal. Aug. 27, 2019). Moreover, “in forma 13 pauperis status may be acquired and lost during the course of litigation.” Wilson v. Dir. of 14 Div. of Adult Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009). 15 Finally, the facts as to the affiant’s poverty must be stated “with some particularity, 16 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 17 (citing Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). 18 Here, Plaintiff represents that his monthly income during the last twelve months 19 averaged $1,465 and his spouse’s $1,700, with a combined average monthly income 20 $3,165. (IFP Mot. ¶ 1, ECF No. 2.) He states that he and his spouse support two adult 21 sons and the monthly household expenses average $2,450. (Id. ¶ 7.) Based on the above, 22 Plaintiff’s household has a positive monthly cash flow of around $700 after paying for 23 necessities and other expenses. Further, Plaintiff states that he and his spouse have around 24 $1,500 in cash and bank accounts, a home worth $45,000, and a 2018 vehicle worth 25 $15,000. (Id. ¶¶ 4–5.) Under these circumstances, the Court finds that requiring Plaintiff 26 to pay the court filing fees would not impair his ability to obtain the necessities of life. See, 27 e.g., de Beauvoir’s v. Advanta Bank Corp., No. 07CV1972WQH(POR), 2007 WL 28 4219447, at *1 (S.D. Cal. Nov. 28, 2007) (denying IFP status where the plaintiffs disclosed 1 ||a positive monthly cash flow of $900, a checking or savings account balance of $10, and 2 || ownership of one vehicle); Simmons v. Wuerth, No. 119CV01107DADSABPC, 2019 WL 3 ||4259754, at *1 (E.D. Cal. Sept. 9, 2019) (denying IFP status where the plaintiff disclosed 4 ||he had $1,706.20 in cash), adopted, No. 119CV01107DADSABPC, 2020 WL 1621368 5 ||(E.D. Cal. Apr. 2, 2020). 6 Considering the foregoing, the Court DENIES Plaintiff's application for leave to 7 || proceed in forma pauperis (ECF No. 2). Plaintiff shall, on or before Friday August 13, 8 || 2021, pay the requisite $402 filing fee. 9 IT IS SO ORDERED. 10 A , 11 || DATED: July 21, 2021 Lin A (Lyphaa. 6 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28