Baize v. United States District Court, Southern District of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 DEBBIE BAIZE, Case No. 21-cv-01262-BAS-KSC 11 Plaintiff, ORDER DENYING PLAINTIFF’S 12 v. MOTION TO PROCEED IN FORMA PAUPERIS 13 UNITED STATES DISTRICT COURT, 14 SOUTHERN DISTRICT OF (ECF No. 2) CALIFORNIA, 15 Defendant. 16 17 Plaintiff Debbie Baize filed this action on July 14, 2021 against the United States 18 District Court, Southern District of California. (Compl., ECF No. 1.) Plaintiff also 19 concurrently filed a Motion for Leave to Proceed In Forma Pauperis (“IFP Motion”) and a 20 Motion to Appoint Counsel. (ECF Nos. 2, 3.) 21 Under 28 U.S.C. § 1915, a litigant who is unable to pay the filing fee to commence 22 a legal action because of indigency may petition the court to proceed without making such 23 payment. The determination of indigency falls within the district court’s discretion. Cal. 24 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 25 U.S. 194 (1993) (holding that “Section 1915 typically requires the reviewing court to 26 exercise its sound discretion in determining whether the affiant has satisfied the statute’s 27 requirement of indigency”). It is well-settled that a party need not be completely destitute 28 to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). 1 To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 2 which states that one cannot because of his poverty pay or give security for costs . . . and 3 still be able to provide himself and dependents with the necessities of life.” Id. at 339. At 4 the same time, however, “the same even-handed care must be employed to assure that 5 federal funds are not squandered to underwrite, at public expense . . . the remonstrances of 6 a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 7 v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 8 District courts, therefore, tend to reject IFP applications where the applicant can pay 9 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. 10 Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other grounds, 11 Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that a district court did not abuse 12 its discretion in requiring a partial fee payment from a prisoner who had a $14.61 monthly 13 salary and who received $110 per month from family). Moreover, “[i]n forma pauperis 14 status may be acquired and lost during the course of litigation.” Wilson v. Dir. of Div. of 15 Adult Insts., 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F. 16 Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) 17 (holding that a plaintiff who was initially permitted to proceed in forma pauperis should be 18 required to pay his $120 filing fee out of a $900 settlement). In addition, the facts as to the 19 affiant’s poverty must be stated “with some particularity, definiteness, and certainty.” 20 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United 21 States, 277 F.2d 723, 725 (9th Cir. 1960)). 22 In Plaintiff’s IFP Motion, she lists no other source of income or assets apart from 23 $2141.00 in disability every month, which she receives on behalf of herself and her 24 deceased spouse,1 for a monthly total $4,282.00. (IFP Mot. ¶¶ 1–5.) She lists $1,300.00 in 25 expenses for food, clothing, medical expenses, and transportation and has no dependents or 26 outstanding debts. (Id. ¶¶ 6–8.) Thus, Plaintiff appears to retain a net income of $2,982.00 27 1 In her concurrently filed Motion to Appoint Counsel (ECF No. 3), Plaintiff indicates that she is 28 1 month, after expenses, which provides Plaintiff with sufficient funds to pay the costs □□ 2 || filing suit and provide herself with the necessities of life. 3 Because the Court concludes, from the information provided, that Plaintiff is able tc 4 || pay the filing fee in this action, the Court DENIES Plaintiff's IFP Motion. Plaintiff mus: 5 || pay the filing fee in full by July 30, 2021. If Plaintiff fails to do so by this date, the Clerk 6 ||is instructed to close the case. 7 IT IS SO ORDERED. 8 / a) ud 9 || DATED: July 20, 2021 Cyl q Hishaa □ 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28