In Re: James Gregory Barrett
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court reviewed a pro se appellant's motion to proceed in forma pauperis (IFP) in a bankruptcy appeal, finding the submitted affidavit failed to clearly distinguish between the appellant's and his wife's shared assets and expenses. The court denied the motion without prejudice, granting the appellant 21 days to pay the filing fee or file a clarified motion.
| What the court decided | The model |
|---|---|
Motion to Proceed In Forma Pauperis denied without prejudice“the Court DENIES WITHOUT PREJUDICE Appellant’s IFP Motion (ECF No. 1-4).” | agree with court The court correctly applied the standard that IFP applicants must allege poverty with particularity, definiteness, and certainty. The order identifies specific ambiguities in the affidavit regarding whether listed assets and expenses are individual or joint, which prevents the court from determining if the appellant can afford the filing fee while maintaining necessities of life. Denying without prejudice is the appropriate procedural remedy to allow the pro se litigant to cure the deficiencies. |
The order itself: sound — The order correctly identifies the legal standard for IFP status and applies it to the specific factual deficiencies in the affidavit. It clearly explains why the current submission is insufficient (ambiguity regarding joint vs. individual assets/expenses) and provides a clear path for relief (21 days to pay or refile). The reasoning is direct and supported by the cited authorities.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 In re JAMES GREGORY BARRETT, Case No.: 22-CV-222 JLS (WVG)
12 Debtor. ORDER DENYING WITHOUT 13 PREJUDICE MOTION TO JAMES GREGORY BARRETT, PROCEED IN FORMA PAUPERIS 14 Appellant, 15 v. (ECF No. 1-4) 16 SALTON SEA ESTATES III, LLC, 17 Appellee. 18 19 20 21 Presently before the Court is Appellant James Gregory Barrett’s Motion to Proceed 22 In Forma Pauperis (“IFP”) (“Mot.,” ECF No. 1-4). Appellant, proceeding pro se, initiated 23 this bankruptcy appeal on February 17, 2022. See generally ECF No. 1 24 All parties instituting a bankruptcy appeal must pay a filing fee of $298, see Fed. R. 25 Bankr. P. 8003(a)(3)(C) (“The notice of appeal must . . . be accompanied by the prescribed 26 filing fee.”); 28 U.S.C. § 1930(c) ($5 appeal fee); Bankruptcy Court Miscellaneous Fee 27 Schedule item 14 ($293 for appeal), unless they are granted leave to proceed IFP. See 28 28 U.S.C. § 1915(a). A federal court may authorize the commencement of an action if the 1 party submits an affidavit, including a statement of assets, showing that he is unable to pay 2 the required filing fee. 28 U.S.C. § 1915(a). A party need not “be absolutely destitute” to 3 proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). 4 “Nonetheless, a plaintiff seeking IFP status must allege poverty ‘with some particularity, 5 definiteness, and certainty.’” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) 6 (quoting United States v. McQuade, 647 F.3d 938, 940 (9th Cir. 1981)). “An affidavit in 7 support of an IFP application is sufficient where it alleges that the affiant cannot pay the 8 court costs and still afford the necessities of life.” Id. “But, the same even-handed care 9 must be employed to assure that federal funds are not squandered to underwrite, at public 10 expense, either frivolous claims or the remonstrances of a suitor who is financially able, in 11 whole or in part, to pull his own oar.” Temple v. Ellerthorp, 586 F. Supp. 848, 850 (D. R.I. 12 1984). 13 Here, it appears that Appellant and his wife make a combined $1,689 per month. 14 See IFP Mot. at 1–2. It is unclear to the Court, however, whether Appellant has attempted 15 to split certain assets and expenses between himself and his wife. For example, it is unclear 16 whether Appellant and his wife have a total of $70.68 in their checking account or whether 17 they collectively have $141.36, which Appellant has represented as each of them having 18 $70.68. See id. at 2. Similarly, it is unclear whether Appellant and his wife spend $107.50 19 or $215 per month for their rent or mortgage payment. See id. at 4. This confusion 20 permeates Appellant’s monthly expenses. See id. at 4–5. Additionally, Appellant has not 21 detailed his assets in sufficient clarity for the Court to fully evaluate Appellant’s financial 22 situation. Appellant list $5,000 in “[o]ther real estate” and $12,500 in “[o]ther assets” 23 without clarifying what these assets are. The Court finds that Appellant does not allege 24 poverty with particularity, definiteness, or certainty; therefore, he is not entitled to proceed 25 IFP. 26 Because the Court is unable to determine from the present affidavit whether 27 requiring Appellant to pay the $298 filing fee would result in his inability to afford the 28 necessities of life, the Court DENIES WITHOUT PREJUDICE Appellant’s IFP Motion 1 || (ECF No. 1-4). Appellant is GRANTED twenty-one (21) days from the date on which 2 || this Order is electronically docketed to either (1) pay the entire $298 filing fee or (2) file a 3 |}renewed Motion to Proceed IFP that clarifies the deficiencies identified in this Order. 4 ||Should Appellant elect to file another [FP Motion, he must make clear what he and his 5 || wife’s total monthly income and expenses are and clarify his assets. If Appellant fails to 6 || pay the $298 filing fee in full or submit a renewed Motion to Proceed IFP within twenty- 7 || one (21) days, the Court will dismiss this action without prejudice. 8 IT IS SO ORDERED. 9 Dated: March 11, 2022 . tt 10 pee Janis L. Sammartino ll United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28