Kron v. Gaspar

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 JEREMY KRON, Case No.: 23-CV-615-CAB-JLB 10 Plaintiff, ORDER DENYING APPLICATION 11 v. FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND SUA 12 KRISTIN GASPAR SPONTE DISMISSING COMPLAINT 13 Defendant. 14 [Doc. No. 2] 15 16 On April 6, 2023, Plaintiff, a non-prisoner, filed a complaint making allegations 17 against Kristin Gaspar. Plaintiff did not prepay the civil filing fees required by 28 U.S.C. 18 § 1914(a) at the time of filing; instead, he filed a Motion to Proceed In Forma Pauperis 19 (“IFP”) pursuant to 28 U.S.C. § 1915(a). [Doc. No. 2.] 20 Generally, all parties instituting a civil action in this court must pay a filing fee. See 21 28 U.S.C. § 1914(a); CivLR 4.5(a). However, under 28 U.S.C. § 1915(a), the court may 22 authorize the commencement, prosecution or defense of any suit without payment of fees 23 if the plaintiff submits an affidavit, including a statement of all his or her assets, showing 24 that he or she is unable to pay filing fees or costs. “An affidavit in support of an IFP 25 application is sufficient where it alleges that the affiant cannot pay the court costs and still 26 afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). 27 “[A] plaintiff seeking IFP status must allege poverty with some particularity, definiteness 28 and certainty.” Id. (internal quotation marks omitted). The granting or denial of leave to 1 proceed IFP in civil cases is within the sound discretion of the district court. Venerable v. 2 Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations omitted). 3 Here, Plaintiff’s IFP application is incomplete, but the information Plaintiff provides 4 does not establish that Plaintiff lacks the funds to pay the filing fee. Plaintiff asserts that 5 he has $7,000 in cash, $1,800 in bank accounts, and $1,500 in a brokerage account. 6 Plaintiff also owns a car, has minimal expenses, and states that he has spent or intends to 7 spend more than $10,000 for expenses and attorney’s fees in this lawsuit. Based on the 8 information Plaintiff has provided, the Court is not persuaded that Plaintiff lacks the funds 9 to pay the filing fee and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234. 10 Therefore, Plaintiff’s application to proceed IFP [Doc. No. 2] is DENIED without 11 prejudice. 12 Moreover, even if Plaintiff is ultimately able to establish entitlement to proceed IFP, 13 a complaint filed by any person seeking to proceed IFP pursuant to 28 U.S.C. § 1915(a) is 14 subject to a mandatory and sua sponte review and dismissal should the Court determine, 15 inter alia, it is frivolous, malicious, or fails to state a claim upon which relief may be 16 granted. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir.2001) 17 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). Congress 18 enacted this safeguard because “a litigant whose filing fees and court costs are assumed by 19 the public, unlike a paying litigant, lacks an economic incentive to refrain from filing 20 frivolous, malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) 21 (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). 22 Here, the caption of the complaint lists causes of action of “breach of oath of office,” 23 “first amendment violation,” “political retaliation,” and “intentional infliction of emotional 24 distress.” It is not clear, however, on what legal theory any of the first three causes of 25 action could proceed in this case, considering that the defendant is an individual who is not 26 alleged to have been acting in an official capacity in connection with the allegations in the 27 complaint. The intentional infliction of emotional distress claim, meanwhile, is a state law 28 claim over which this Court can exercise jurisdiction only if Plaintiff is able state a federal 1 |/claim. Moreover, regardless of subject matter jurisdiction, the complaint does not contain 2 sufficient allegations to state any cause of action, federal or not. Accordingly, this Court 3 lacks subject matter jurisdiction, and the complaint fails to state a claim. 4 In light of the foregoing, it is hereby ORDERED that Plaintiff's application to 5 || proceed in forma pauperis is DENIED without prejudice. On or before April 28, 2023, 6 || Plaintiff must (1) either file a new and complete IFP application! or pay the filing fee, and 7 file an amended complaint that sets forth a legal theory on which Plaintiff may assert a 8 || federal claim against Defendant and contains sufficient allegations to state such a claim or 9 ||claims. Failure to comply with these requirements will result in dismissal of the lawsuit. 10 It is SO ORDERED. 11 ||Dated: April 6, 2023 (GR 12 Hon. Cathy Ann Bencivengo 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 2 26 Plaintiff is advised that any new application must be made under penalty of perjury and must contain sufficient information to explain why he is entitled to proceed IFP notwithstanding the assets listed in the 27 || first application. Unexplained inconsistencies between a renewed application and the first application will 28 result in denial of the renewed application and the requirement that Plaintiff pay the filing fee if he wishes to proceed with this lawsuit.