Barragan v. Sherwood
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
Plaintiff Zocima Maria Barragan filed a complaint and a motion to proceed in forma pauperis (IFP) without prepaying the filing fee. The court denied the IFP motion and the request for appointment of counsel, ordering the plaintiff to pay the filing fee by July 31, 2023, or face dismissal of the complaint without prejudice.
| What the court decided | The model |
|---|---|
Motion to Proceed In Forma Pauperis Denied“In light of the foregoing, Plaintiff's application to proceed IFP [Doc. No. 2] and request for appointment of counsel [Doc. No. 3] are DENIED.” | agree with court The court correctly applied the standard from Escobedo v. Applebees, requiring a showing that the plaintiff cannot pay court costs and still afford the necessities of life. The order recites specific financial facts: a monthly after-tax income exceeding $3,000, monthly expenses of $2,068.81, ownership of an automobile, and savings over $1,500. Based on these recited facts, the plaintiff has a surplus of income and assets, making it reasonable to conclude she can pay the filing fee without sacrificing necessities. The denial is supported by the record as summarized in the order. |
Request for Appointment of Counsel Denied“In light of the foregoing, Plaintiff's application to proceed IFP [Doc. No. 2] and request for appointment of counsel [Doc. No. 3] are DENIED.” | agree with court The order denies the request for counsel in the same sentence as the IFP denial, citing the same financial findings. While the order does not explicitly state the legal standard for appointing counsel (typically requiring a showing of indigency and that the case is meritorious), the denial is logically consistent with the finding that the plaintiff is not indigent. In civil cases, there is no constitutional right to appointed counsel, and courts typically deny such requests if the plaintiff fails to establish poverty. The court's reliance on the financial data to deny both motions is procedurally sound. |
The order itself: sound — The order is sound. It correctly identifies the statutory framework for IFP status and cites the controlling Ninth Circuit precedent (Escobedo) for the substantive standard. The court applies this standard to the specific financial facts recited in the plaintiff's affidavit (income, expenses, assets). The conclusion that the plaintiff does not meet the 'necessities of life' threshold follows logically from the stated surplus of income and assets. The order is concise and directly addresses the motion.
Opinion
1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 ZOCIMA MARIA BARRAGAN, Case No.: 23-CV-1255-CAB-BGS 14 Plaintiff, ORDER DENYING MOTION TO 15 v. PROCEED IN FORMA PAUPERIS AND REQUEST FOR 16 IRENE SHERWOOD et al., APPOINTMENT OF COUNSEL 17 Defendants. 18 [Doc. Nos. 2, 3] 19 20 On July 6, 2023, Plaintiff Zocima Maria Barragan filed a complaint [Doc. No. 1] 21 and a request for appointment of counsel [Doc. No. 3]. Plaintiff did not prepay the filing 22 fees required by 28 U.S.C. § 1914(a) at the time of filing; instead, she filed a motion to 23 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). [Doc. No. 2]. 24 Generally, all parties instituting a civil action in this court must pay a filing fee. See 25 28 U.S.C. § 1914(a); CivLR 4.5(a). However, under 28 U.S.C. § 1915(a), the Court may 26 authorize the commencement, prosecution, or defense of any suit without payment of fees 27 if the plaintiff submits an affidavit, including a statement of all his or her assets, showing 28 that he or she is unable to pay filing fees or costs. “An affidavit in support of an IFP 1 || application is sufficient where it alleges that the affiant cannot pay the court costs and still 2 || afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). 3 || plaintiff seeking IFP status must allege poverty with some particularity, definiteness, 4 ||and certainty.” /d. (internal quotations omitted). The granting or denial of leave to proceed 5 || IFP in civil cases is within the sound discretion of the district court. Venerable v. Meyers, 6 F.2d 1215, 1216 (9th Cir. 1974) (citations omitted). 7 According to her application, Plaintiff has an after-tax bi-weekly income of $1,500 8 ||[Doc. No. 2-1 at 2], meaning her after-tax monthly income exceeds $3,000, while her 9 expenses are only $2,068.81 per month [Doc. No. 2 at 5]. Plaintiff also owns a relatively 10 automobile and has over $1,500 in savings. [Doc. No. 2 at 2-3.] Based on the 11 |/information provided, the Court is not persuaded that Plaintiff lacks the funds to pay the 12 || filing fee and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234. 13 In light of the foregoing, Plaintiff's application to proceed IFP [Doc. No. 2] and 14 || request for appointment of counsel [Doc. No. 3] are DENIED. Plaintiff must pay the filing 15 || fee no later than July 31, 2023 or her complaint will be dismissed without prejudice. 16 It is SO ORDERED. 17 Dated: July 7, 2023 18 Hon. Cathy Ann Bencivengo 19 United States District Judge 20 21 22 23 24 25 26 27 28