Peterson v. Leahy

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEFFREY PETERSON, an individual, Case No.: 3:21-cv-01116-GPC-MDD 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 14 CHRISTOPHER LEAHY, BRETT BURKETT, SAN DIEGO POLICE 15 DEPARTMENT, ZACHERY 16 BRADLEY, OFFICE OF CITY ATTORNEY, EMILY GARSON, 17 JEFFREY JORDON in their individual 18 capacities, 19 Defendants. 20 21 On June 15, 2021, Plaintiff Jeffrey Peterson (“Plaintiff”), proceeding pro se, filed 22 the instant action against Defendants Christopher Leahy, Brett Burkett, San Diego Police 23 Department, Zachery Bradley, Office of City Attorney, Emily Garson, and Jeffrey 24 Jordon. Compl. 1, ECF No. 1 at 1. Plaintiff concurrently filed a motion to proceed in 25 forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). ECF No. 2. 26 27 1 The Court decides the matter on the papers submitted and without oral argument 2 pursuant to Civil Local Rule 7.1.d.1. For the following reasons, the Court DENIES 3 Plaintiff’s motion to proceed IFP. 4 I. BACKGROUND 5 Plaintiff claims he has been unlawfully surveilled and the victim of a conspiracy to 6 cover up misconduct by the San Diego Police Department (“SDPD”) and the San Diego 7 City Attorney in retaliation for making a civil complaint against San Diego Police Officer 8 Christopher Leahy (“Leahy”) in November 2011. ECF No. 1 at 9, 12. Plaintiff alleges he 9 was falsely convicted of a crime in 2010 and falsely arrested on March 29, 2014, in a 10 coordinated effort by Leahy and others in the SDPD. Id. at 9. 11 Plaintiffs’ allegations include that the SDPD has been accessing his personal e- 12 mail accounts on his phone and laptop without a search warrant, id. at 12–13, that the 13 SDPD misled the state court to enable Leahy and his wife to obtain a restraining order 14 against Plaintiff, id. at 17, and that members of the SDPD have followed and harassed 15 him in California and Illinois, id. at 10–18, and that the SDPD, City Attorney, and City of 16 San Diego have continued to coordinate to intimidate him from pursuing justice for the 17 false arrest by Leahy, id. at 19–20. 18 II. WHETHER PLAINTIFF HAS THE ABILITY TO PAY HIS FILING FEE 19 All parties instituting any civil action, suit, or proceeding in a district court of the 20 United States, except an application for writ of habeas corpus, must pay filing and 21 administrative fees in the amount of $402.1 See 28 U.S.C. § 1914; CivLR 4.5.a. An action 22 may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted 23 24 25 1 In addition to the $350 filing fee, there is a $52 administrative fee for filing a civil action. This fee does not apply to persons granted leave to proceed IFP. See Administrative Office of the United States 26 Courts, District Court Miscellaneous Fee Schedule (effective Dec. 1, 2020), https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule. 27 1 leave to proceed IFP under 28 U.S.C. § 1915(a)(1). Andrews v. Cervantes, 493 F.3d 2 1047, 1051 (9th Cir. 2007). “The granting or refusing of permission to proceed [IFP] is a 3 matter committed to the sound discretion of the district court.” Smart v. Heinze, 347 F.2d 4 114, 116 (9th Cir. 1965) (citing Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963)). 5 To proceed IFP under § 1915(a)(1), a plaintiff must submit an affidavit that 6 contains a complete statement of his assets and demonstrate his inability to pay the fee. 7 Coleman v. Tollefson, 575 U.S. 532, 535 (2015). The plaintiff need not demonstrate that 8 he is completely destitute. Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) 9 (citing Jefferson v. United States, 277 F.3d 723, 725 (9th Cir. 1960)). However, district 10 courts tend to reject applications to proceed IFP “where the applicant can pay the filing 11 fee with acceptable sacrifice to other expenses.” Scher v. Saul, No. 20-CV-1665, 2020 12 WL 8617415, at *1 (S.D. Cal. Sept. 22, 2020) (citing Stehouwser v. Hennessy, 841 13 F.Supp. 316 (N.D. Cal. 1994), vacated in part on other grounds, Oliveras v. Marshall, 59 14 F.3d 109, 112 (9th Cir. 1995)); see also Escobedo, 787 F.3d at 1234 (citing Adkins v. E.I. 15 DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)) (“An affidavit in support of an 16 IFP application is sufficient where it alleges that the affiant cannot pay the court costs 17 and still afford the necessities of life.”). A court may take the full assets and funds 18 available to a petitioner under consideration when assessing sufficient need to proceed 19 IFP. See, e.g., Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (denying IFP petition 20 where “plaintiff possessed savings of $450” and affirming “this amount was more than 21 sufficient to allow the plaintiff to pay the filing fee in this action”); Oliveras, 59 F.3d at 22 112 (affirming imposition of $30 partial filing fee for IFP petitioner who received $310 23 from his family). 24 Here, Plaintiff has provided an affidavit to support his application to proceed IFP. 25 ECF No. 2. While Plaintiff does not list active employment since March 2021, Plaintiff 26 lists $750 average employment income, $1,000 in gifts, and $250 from stimulus totaling 27 1 $2,000 in monthly income over the last twelve months. See id. at 1–2. Plaintiff also lists a 2 total of $8,400 in two bank accounts. Id. at 2. Plaintiff’s average monthly expenses total 3 $800, and he does not list any dependents. See id. at 4. While Plaintiff states that he 4 expects major changes to his monthly income or expenses or in his assets or liabilities 5 during the next 12 months, he indicates that these changes are “nothing definitive” and 6 provides no further details that suggest his financial situation is likely to worsen. Id. at 5. 7 Plaintiff reports recent monthly income and assets that surpass his monthly 8 expenses. Compare Scher, 2020 WL 8617415, at *1 (granting motion to proceed IFP 9 where plaintiff had $0 in monthly income and $4,000 in total assets against $3,555 in 10 monthly expenses) and Wilson v. Nat’l R.R. Passenger Corp., No. 20-CV-714, 2020 WL 11 8872288, at *1 (S.D. Cal. Apr. 16, 2020) (granting motion to proceed IFP where plaintiff 12 had $1,400 in monthly income and $60 in total assets against $4,187 in monthly 13 expenses) with ECF No. 2 at 1–4 ($2000 in monthly income and $8,400 in total assets 14 against $800 in monthly expenses). Even discounting Plaintiff’s monthly income and 15 considering his bank accounts alone, Plaintiff has sufficient funds from his bank accounts 16 to cover the $402 filing fee, which is equivalent to only 5% of those assets and leave him 17 with almost $8,000, covering about 10 months of expenses even if he is not currently 18 receiving income or monthly gifts. See id. at 1–4; cf. Oliveras, 59 F.3d at 112 (finding 19 plaintiff had “sufficient funds in his prison trust fund account to cover the partial fee” 20 when fee was about 10% of his savings). Plaintiff has not demonstrated that he would be 21 “unable to pay the filing fee without sacrificing the necessities of life.” See Wilson, 2020 22 WL 8872288, at *1. 23 Accordingly, the Court DENIES Plaintiff’s request to proceed in forma pauperis 24 pursuant 28 U.S.C. § 1915(a). 25 \ \ \ 26 \ \ \ 27 1 ||. CONCLUSION 2 For the reasons discussed above, the Court hereby DENIES Plaintiff's petition to 3 || proceed in forma pauperis pursuant 28 U.S.C. § 1915(a) and DISMISSES the case 4 || without prejudice. To have the case reopened, Plaintiff must pay the $402 filing fee or 5 || present adequate proof he cannot pay the filing fee no later than September 28, 2021. 6 IT IS SO ORDERED. 7 Dated: July 28, 2021 8 Hon. athe Cae 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ; 28 21-cv-01116-GPC-MDD