Kelly v. Jingping
- Proceeding
- district
- Area
- civil
- Panel
- Ruth Bermudez Montenegro (author)
Analysis
Plaintiff Dolores Kelly filed a complaint against Xi Jinping and moved to proceed in forma pauperis (IFP) and for appointment of counsel, but failed to provide specific details regarding her income, assets, and expenses in the required affidavit. The court denied both motions without prejudice, ordering the plaintiff to either pay the filing fee or file a renewed, complete IFP motion by May 18, 2023, or face dismissal.
| What the court decided | The model |
|---|---|
Denial of Plaintiff's Motion to Proceed In Forma Pauperis“Accordingly, the Court DENIES Plaintiff's IFP Motion (Doc. 2) and request to appoint counsel (Doc. 3) without prejudice.” | agree with court The court correctly applied the standard from Escobedo v. Applebees, which requires that an affidavit of poverty be stated with particularity, definiteness, and certainty. The order recites that the plaintiff left significant portions of the affidavit blank, failing to provide information on income, assets, or expenses. Denying the motion without prejudice is the appropriate procedural mechanism to allow the plaintiff to cure the deficiency. |
Denial of Plaintiff's Request for Appointment of Counsel“Accordingly, the Court DENIES Plaintiff's IFP Motion (Doc. 2) and request to appoint counsel (Doc. 3) without prejudice.” | agree with court The denial of the request for counsel is tied to the denial of the IFP motion. Since the plaintiff failed to establish indigency, the prerequisite for the court's discretion to appoint counsel in a civil case was not met. The denial without prejudice allows the request to be reconsidered if IFP status is later granted. |
The order itself: sound — The order is procedurally sound. It correctly identifies the statutory requirement for IFP status, cites the controlling Ninth Circuit precedent regarding the specificity of the affidavit, and applies those standards to the specific deficiencies in the plaintiff's filing (blank fields). The remedy (denial without prejudice with a deadline) is standard and appropriate for a deficient IFP application.
How this analysis was made · dispute it
unusual dispositionOpinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DOLORES KELLY, Case No.: 3:23-cv-00685-RBM-AHG 11 Plaintiff, ORDER: 12 v. (1) DENYING WITHOUT 13 PREJUDICE PLAINTIFF’S MOTION 14 XI JINPING, TO PROCEED IN FORMA 15 Defendant. PAUPERIS; and 16 (2) DENYING WITHOUT PREJUDICE PLAINTIFF’S 17 REQUEST FOR APPOINTMENT OF 18 COUNSEL 19 [Docs. 2, 3] 20 21 22 On April 17, 2023, Plaintiff Dolores Kelly (“Plaintiff”) filed a complaint against Xi 23 Jinping. (Doc. 1.) Plaintiff did not pay the required filing fee and instead filed a motion 24 to proceed in forma pauperis (“IFP Motion”). (Doc. 2.) Plaintiff also filed a request for 25 appointment of counsel. (Doc. 3.) For the reasons outlined below, the Court denies both 26 motions. 27 All parties instituting a civil action in a district court of the United States, except an 28 application for a writ of habeas corpus, must pay a filing fee of $402. See 28 U.S.C. 1 § 1914(a). But a litigant who, because of indigency, is unable to pay the required fees may 2 petition the Court to proceed without making such payment. 28 U.S.C. § 1915(a)(1). The 3 facts of an affidavit of poverty must be stated “with some particularity, definiteness and 4 certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (quoting United 5 States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)). 6 The determination of indigency falls within the district court’s discretion. Cal. 7 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 8 U.S. 194 (1993). It is well-settled that a party need not be completely destitute to proceed 9 in forma pauperis. Adkins v. E.I. DuPonte de Nemours & Co., 335 U.S. 331, 339-40 10 (1948); see also Escobedo, 787 F.3d at 1234. To satisfy the requirements of 28 U.S.C. 11 § 1915(a)(1), “an affidavit [of poverty] is sufficient which states that one cannot because 12 of his poverty pay or give security for costs . . . and still be able to provide[] himself and 13 dependents with the necessities of life.” Adkins, 335 U.S. at 339 (internal quotations 14 omitted). 15 Here, Plaintiff has not sufficiently demonstrated her entitlement to IFP status. 16 Plaintiff attests she is unable to pay the costs of these proceedings. (Doc. 2 at 1.) Plaintiff 17 fails, however, to answer or provide a meaningful response to many of the questions in the 18 affidavit, as required by the Instructions listed on page 1. (Id.) Plaintiff has left questions 19 one through eight, and part of twelve, entirely blank, leaving the Court with no information 20 about Plaintiff’s income sources, expenses, employment history, assets, debts, or 21 dependents. (Id. at 1–5.) Because the Court finds Plaintiff does not allege poverty “with 22 some particularity, definiteness and certainty,” Escobedo, 787 F.3d at 1234, Plaintiff is not 23 entitled to proceed in forma pauperis at this time. Courts in this district have denied similar 24 IFP applications where a litigant fails to meet her burden of demonstrating indigence. See, 25 e.g., Blackshire v. Buca Restaurants 2, Inc., No. 21-cv-1505-JLS-WVG, 2022 WL 36519, 26 at *2-3 (S.D. Cal. Jan. 3, 2022) (denying IFP motion where plaintiff failed to answer or 27 provide meaningful response to many questions in affidavit); Aellis O. v. Connor, No. 22- 28 cv-200-JLS-WVG, 2022 WL 757432, at *2 (S.D. Cal. Feb. 18, 2022) (denying IFP motion 1 || where plaintiff failed to answer every question in affidavit); Toussaint v. Venante, No. 22- 2 || cv-245-JLS-AGH, 2022 WL 891112, at *1-2 (S.D. Cal. Mar. 25, 2022) (same). 3 Accordingly, the Court DENIES Plaintiff's IFP Motion (Doc. 2) and request to 4 appoint counsel (Doc. 3) without prejudice. No later than May 18, 2023, Plaintiff must 5 |/either pay the $402 filing fee required to commence this civil action or file a renewed IFP 6 || motion that sufficiently shows she is entitled to IFP status. If Plaintiff fails to either pay 7 $402 filing fee or file a renewed IFP motion by May 18, 2023, the Court will 8 dismiss the complaint and close the case. 9 IT IS SO ORDERED. 10 ||DATE: April 18, 2023 _ CF Baran tiny □ HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 ee