Kelly v. Bezos
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
Plaintiff Dolores Kelly filed a complaint, an application to proceed in forma pauperis (IFP), and a motion to appoint counsel. The court denied the IFP application without prejudice because the affidavit was blank and failed to allege poverty with particularity, and denied the motion for counsel as moot, giving the plaintiff until May 1, 2023, to pay the filing fee or file a compliant IFP application.
| What the court decided | The model |
|---|---|
Application to proceed in forma pauperis denied without prejudice“Therefore, Plaintiff’s application to proceed IFP [Doc. Nos. 2] is DENIED without prejudice” | agree with court The court correctly applied the standard from Escobedo v. Applebees, which requires a plaintiff to allege poverty with particularity, definiteness, and certainty. The order recites that the plaintiff's application was 'almost entirely blank' and failed to answer questions regarding income, assets, or expenses. Because the record as described in the order lacks the necessary factual allegations to demonstrate an inability to pay, the denial without prejudice is the appropriate procedural mechanism to allow the plaintiff to cure the deficiency. |
Motion to appoint counsel denied as moot“and Plaintiffs motion to appoint counsel [Doc. No. 3] is DENIED as moot.” | agree with court In civil cases, the appointment of counsel is generally contingent upon the plaintiff's ability to proceed in the action. Since the IFP application was denied, the plaintiff does not yet have standing to proceed without paying the fee, rendering the request for appointed counsel premature or moot at this stage. The court's decision to deny the motion as moot rather than on the merits is consistent with procedural practice when the underlying status of the case (IFP vs. fee-paid) is unresolved. |
The order itself: sound — The order is procedurally sound. It correctly identifies the statutory basis for the filing fee and the exception for indigent litigants. It applies the controlling Ninth Circuit precedent (Escobedo) to the specific facts recited (a blank affidavit). The remedy (denial without prejudice with a deadline to cure) is appropriate and provides the plaintiff a clear path to relief. There are no gaps in the reasoning regarding the specific motions presented.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DOLORES KELLY, Case No.: 23-CV-627-CAB-KSC 12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE APPLICATION TO PROCEED IN FORMA PAUPERIS 14 JEFF BEZOS, [Doc. No. 2] AND DENYING AS 15 Defendant. MOOT MOTION FOR COUNSEL [Doc. No. 3] 16 17 18 On April 6, 2023, Plaintiff Dolores Kelly filed a complaint [Doc. No. 1], along with 19 an application to proceed in forma pauperis (“IFP”) [Doc. No. 2] and a motion to appoint 20 counsel [Doc. No. 3]. For the following reasons, plaintiff’s IFP application and motion to 21 appoint counsel are DENIED. 22 Generally, all parties instituting a civil action in this court must pay a filing fee. See 23 28 U.S.C. § 1914(a); CivLR 4.5(a). But the court may authorize a party to proceed without 24 paying the fee if that party submits an affidavit demonstrating an inability to pay. 28 U.S.C. 25 § 1915(a). “An affidavit in support of an IFP application is sufficient where it alleges that 26 the affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. 27 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “[A] plaintiff seeking IFP status must 28 1 || allege poverty with some particularity, definiteness and certainty.” Jd. (internal quotation 2 ||marks omitted). 3 Here, Plaintiff’s IFP application is almost entirely blank. She fails to answer any of 4 ||the questions regarding whether she has any income, assets, or expenses. Without such 5 || details, the Court cannot determine whether Plaintiff is entitled to proceed IFP. In other 6 || words, based on the lack of “particularity, definiteness and certainty” in the information 7 || provided, the Court is not persuaded that Plaintiff lacks the funds to pay the filing fee and 8 || “still afford the necessities of life.” Escobedo, 787 F.3d at 1234. Therefore, Plaintiff’s 9 || application to proceed IFP [Doc. Nos. 2] is DENIED without prejudice, and Plaintiffs 10 || motion to appoint counsel [Doc. No. 3] is DENIED as moot. 11 Plaintiff shall have until May 1, 2023 to either pay the filing fee, or to file a new 12 application to proceed IFP that provides the required information with “particularity, 13 || definiteness, and certainty.” In particular, Plaintiff shall respond truthfully and completely 14 |/to Questions | - 8. If the filing fee is not paid or a renewed application to proceed in forma 15 || pauperis is not filed by May 1, 2023, the Clerk of the Court shall dismiss the case without 16 || prejudice and terminate the action. 17 IT IS SO ORDERED. 18 Dated: April 10, 2023 € ZL 19 Hon. Cathy Ann Bencivengo 20 United States District Judge 21 22 23 24 25 26 27 28