Kelly v. Treasury Department IRS
- Proceeding
- district
- Area
- civil
- Panel
- Ruth Bermudez Montenegro (author)
Analysis
Plaintiff Dolores Kelly filed a complaint against the IRS and moved to proceed in forma pauperis (IFP) and for appointment of counsel, but failed to provide specific details regarding her financial status in the required affidavit. The Court denied both motions without prejudice, ordering the Plaintiff to either pay the filing fee or file a compliant 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 that an affidavit of poverty must 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, expenses, or assets. Denying the motion without prejudice is the standard procedural remedy when an IFP application is facially deficient, allowing the plaintiff to cure the defect. |
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 IFP status. In civil cases, there is no constitutional right to appointed counsel. The court's decision to deny this request without prejudice, contingent on the plaintiff's ability to establish indigency or pay fees, is consistent with the procedural posture of the case. |
The order itself: sound — The order is procedurally sound. It correctly identifies the legal standard for IFP status, applies it to the specific factual deficiency (blank fields in the affidavit), and provides a clear deadline for the plaintiff to cure the defect or face dismissal. The reliance on Ninth Circuit precedent is appropriate.
Opinion
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-00693-RBM-BLM 11 Plaintiff, ORDER: 12 v. (1) DENYING WITHOUT 13 PREJUDICE PLAINTIFF’S MOTION 14 TREASURY DEPARTMENT IRS, 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 23 On April 17, 2023, Plaintiff Dolores Kelly (“Plaintiff”) filed a complaint against 24 Defendant “IRS Treasury Department,” which the Court understands to be the Internal 25 Revenue Service. (Doc. 1.) Plaintiff did not pay the required filing fee and instead filed a 26 motion to proceed in forma pauperis (“IFP Motion”). (Doc. 2.) Plaintiff also filed a request 27 for appointment of counsel. (Doc. 3.) For the reasons outlined below, the Court denies 28 both motions. 1 All parties instituting a civil action in a district court of the United States, except an 2 application for a writ of habeas corpus, must pay a filing fee of $402. See 28 U.S.C. 3 § 1914(a). But a litigant who, because of indigency, is unable to pay the required fees may 4 petition the Court to proceed without making such payment. 28 U.S.C. § 1915(a)(1). The 5 facts of an affidavit of poverty must be stated “with some particularity, definiteness and 6 certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (quoting United 7 States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)). 8 The determination of indigency falls within the district court’s discretion. Cal. 9 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 10 U.S. 194 (1993). It is well-settled that a party need not be completely destitute to proceed 11 in forma pauperis. Adkins v. E.I. DuPonte de Nemours & Co., 335 U.S. 331, 339-40 12 (1948); see also Escobedo, 787 F.3d at 1234. To satisfy the requirements of 28 U.S.C. 13 § 1915(a)(1), “an affidavit [of poverty] is sufficient which states that one cannot because 14 of his poverty pay or give security for costs . . . and still be able to provide[] himself and 15 dependents with the necessities of life.” Adkins, 335 U.S. at 339 (internal quotations 16 omitted). 17 Here, Plaintiff has not sufficiently demonstrated her entitlement to IFP status. 18 Plaintiff attests she is unable to pay the costs of these proceedings. (Doc. 2 at 1.) Plaintiff 19 fails, however, to answer or provide a meaningful response to many of the questions in the 20 affidavit, as required by the Instructions listed on page 1. (Id.) Plaintiff has left questions 21 one through eight, and part of twelve, entirely blank, leaving the Court with no information 22 about Plaintiff’s income sources, expenses, employment history, assets, debts, or 23 dependents. (Id. at 1–5.) Because the Court finds Plaintiff does not allege poverty “with 24 some particularity, definiteness and certainty,” Escobedo, 787 F.3d at 1234, Plaintiff is not 25 entitled to proceed in forma pauperis at this time. Courts in this district have denied similar 26 IFP applications where a litigant fails to meet her burden of demonstrating indigence. See, 27 e.g., Blackshire v. Buca Restaurants 2, Inc., No. 21-cv-1505-JLS-WVG, 2022 WL 36519, 28 at *2-3 (S.D. Cal. Jan. 3, 2022) (denying IFP motion where plaintiff failed to answer or 1 || provide meaningful response to many questions in affidavit); Ae/lis O. v. Connor, No. 22- 2 || cv-200-JLS-WVG, 2022 WL 757432, at *2 (S.D. Cal. Feb. 18, 2022) (denying IFP motion 3 || where plaintiff failed to answer every question in affidavit); Toussaint v. Venante, No. 22- 4 || cv-245-JLS-AGH, 2022 WL 891112, at *1-2 (S.D. Cal. Mar. 25, 2022) (same). 5 Accordingly, the Court DENIES Plaintiff's IFP Motion (Doc. 2) and request to 6 appoint counsel (Doc. 3) without prejudice. No later than May 18, 2023, Plaintiff must 7 |/either pay the $402 filing fee required to commence this civil action or file a renewed IFP 8 || motion that sufficiently shows she is entitled to IFP status. If Plaintiff fails to either pay 9 || the $402 filing fee or file a renewed IFP motion by May 18, 2023, the Court will 10 || dismiss the complaint and close the case. 11 IT IS SO ORDERED. 12 |]DATE: April 19, 2023 _ ed Brady, tage > 14 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3