Kelly v. Arlington

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-695 JLS (MSB)

12 Plaintiff, ORDER (1) DENYING WITHOUT 13 v. PREJUDICE MOTION TO PROCEED IN FORMA PAUPERIS; 14 MICHEAL ARLINGTON and (2) DISMISSING ACTION CRUNCHBASE, 15 WITHOUT PREJUDICE FOR Defendants. FAILURE TO PAY FILING FEES 16 REQUIRED BY 28 U.S.C. § 1914(a); 17 AND (3) DENYING AS MOOT REQUEST FOR APPOINTMENT 18 OF COUNSEL 19 20 (ECF Nos. 2, 3) 21 22 Presently before the Court are Plaintiff Dolores Kelly’s Motion to Proceed in Forma 23 Pauperis (“IFP”) (“IFP Mot.,” ECF No. 2) and Request for Appointment of Counsel 24 (“Counsel Mot.,” ECF No. 3). Having carefully considered Plaintiff’s IFP Motion and the 25 applicable law the Court DENIES WITHOUT PREJUDICE Plaintiff’s IFP Motion, 26 DENIES AS MOOT Plaintiff’s Counsel Motion, and DISMISSES WITHOUT 27 PREJUDICE Plaintiff’s Complaint, for the reasons that follow. 28 / / / 1 MOTION TO PROCEED IN FORMA PAUPERIS 2 All parties instituting a civil action, suit, or proceeding in a district court of the 3 United States, other than a petition for writ of habeas corpus, must pay a filing fee of $402.1 4 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee 5 only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)(1). 6 Section 1915(a)(1) provides: 7 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or 8 proceeding . . . without prepayment of fees or security therefor, 9 by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay 10 such fees or give security therefor. 11 12 As §1915(a)(1) does not itself define what constitutes insufficient assets to warrant IFP 13 status, the determination of indigency falls within the district court’s discretion. See Cal. 14 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 1915 typically 15 requires the reviewing court to exercise its sound discretion in determining whether the 16 affiant has satisfied the statute’s requirement of indigency.”), reversed on other grounds 17 by 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient where 18 it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 19 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont 20 de Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely destitute to 21 obtain benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 22 1960). “Nevertheless, a plaintiff seeking IFP status must allege poverty ‘with some 23 particularity, definiteness[,] and certainty.’” Escobedo, 787 F.3d at 1234. 24 / / / 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. 28 Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed 1 Although the IFP Motion is clear that the applicant must “[c]omplete all questions 2 in this application” and “not leave any blanks,” IFP Mot. at 1, Plaintiff’s IFP Motion 3 provides no information about her monthly income, her assets, or her monthly expenses, 4 see id. at 1–5. The same is true as to the “Affi[d]avit in Support of Request for Counsel” 5 Plaintiff filed with her Counsel Motion: although Plaintiff provides her name and address 6 and indicates she is single, the Affidavit is utterly devoid of any information concerning 7 her financial situation. Counsel Mot. at 4–6. 8 In light of the foregoing, the Court finds that Plaintiff does not allege poverty with 9 particularity, definiteness, or certainty and, therefore, is not entitled to proceed IFP at this 10 time. Because the Court lacks any information about Plaintiff’s assets, income, and 11 expenses, the Court cannot decide, on the record presently before it, that Plaintiff would be 12 unable to pay court costs and “still afford the necessities of life.” Escobedo, 787 F.3d at 13 1234. Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiff’s IFP Motion 14 and DISMISSES WITHOUT PREJUDICE this civil action in light of Plaintiff’s failure 15 to pay the filing fees required by 28 U.S.C. § 1914(a). See, e.g., Stika v. McCauley, No. 16 19-CV-00677-GPC-LL, 2020 WL 2079390, at *1 (S.D. Cal. Apr. 30, 2020) 17 (“dismiss[ing] . . . [a]ction without prejudice for failure to pay the mandatory fee”). 18 REQUEST FOR APPOINTMENT OF COUNSEL 19 Plaintiff also has filed a request for appointment of counsel. See generally Counsel 20 Mot. Given that the Court dismisses Plaintiff’s Complaint, however, the Court also 21 DENIES AS MOOT Plaintiff’s request for appointment of counsel, without prejudice to 22 Plaintiff renewing said motion should she elect to reopen this case and should she satisfy 23 the criteria for this Court’s discretionary appointment of counsel to represent an indigent 24 party in a civil case. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 25 2004) (noting that, under 28 U.S.C. § 1915(e)(1), a court may request an attorney to 26 represent a person unable to afford counsel upon “[a] finding of . . . exceptional 27 circumstances,” which “requires an evaluation of both the ‘likelihood of success on the 28 merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity 1 || of the legal issues involved.’” (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 2 || Cir. 1986))). 3 CONCLUSION 4 In light of the foregoing, the Court DENIES WITHOUT PREJUDICE Plaintiff s 5 ||Motion to Proceed IFP (ECF No. 2) and DISMISSES WITHOUT PREJUDICE this 6 || action in light of Plaintiffs failure to pay the filing fees required by 28 U.S.C. § 1914(a). 7 Furthermore, the Court DENIES AS MOOT Plaintiffs Request for Appointment of 8 || Counsel (ECF No. 3). 9 The Court GRANTS Plaintiff thirty (30) days from the date on which this Order is 10 || electronically docketed to reopen this matter by either (1) filing a properly supported 11 |/motion to proceed IFP or (2) paying the full $402 civil filing and administrative fee 12 required by 28 U.S.C. § 1914(a). If Plaintiff chooses not to comply with this Order by 13 || either paying the full $402 civil filing and administrative fee or submitting a complete 14 || motion to proceed IFP within thirty 30) days of the date of this Order, this civil action 15 || will remain dismissed without prejudice and without further order of the Court based on 16 || Plaintiff’s failure to comply with 28 U.S.C. § 1914(a). 17 IT IS SO ORDERED. 18 || Dated: April 27, 2023 . tt f te 19 on. Janis L. Sammartino 0 United States District Judge 21 22 23 24 25 26 27 28