Elliot v. Spe Terra Nova Apartment Owners LLC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 NELLY ELLIOTT, et al., Case No. 24-cv-0447-BAS-JLB 11 Plaintiffs, ORDER DENYING WITHOUT 12 PREJUDICE PLAINTIFF’S v. APPLICATION TO PROCEED 13 IN FORMA PAUPERIS SPE TERRA NOVA VILLAS 14 APARTMENT OWNERS, LLC, et al., (ECF No. 2) 15 Defendants. 16 17 On March 6, 2024, Plaintiff Nelly Elliott, proceeding pro se, commenced this action. 18 (ECF No. 1.) The same day, Plaintiff also filed an application seeking leave to proceed 19 without prepaying fees or costs, also known as proceeding in forma pauperis (“IFP”). (ECF 20 No. 2.) For the reasons discussed below, the Court DENIES WITHOUT PREJUDICE 21 Plaintiff’s application to proceed IFP. 22 Under 28 U.S.C. § 1915, an indigent litigant who is unable to pay the fees required 23 to commence a legal action may petition a court to proceed without making such 24 prepayment. The determination of indigency falls within the district court’s discretion. 25 Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding that “Section 26 1915 typically requires the reviewing court to exercise its sound discretion in determining 27 whether the affiant has satisfied the statute’s requirement of indigency”), rev’d on other grounds, 506 U.S. 194 (1993). 1 It is well-settled that a party need not be completely destitute to proceed in forma 2 pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To 3 satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 4 which states that one cannot because of his poverty pay or give security for the costs . . . 5 and still be able to provide himself and dependents with the necessities of life.” Id. at 339 6 (internal quotations omitted). At the same time, however, “the same even-handed care 7 must be employed to assure that federal funds are not squandered to underwrite, at public 8 expense, . . . the remonstrances of a suitor who is financially able, in whole or in material 9 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 10 District courts, therefore, tend to reject IFP applications where the applicant can pay 11 the filing fee with acceptable sacrifice to other expenses. See, e.g., Olivares v. Marshall, 12 59 F.3d 109, 111 (9th Cir. 1995) (finding that a district court did not abuse its discretion in 13 requiring a partial fee payment from a prisoner who had a $14.61 monthly salary and who 14 received $110 per month from family). The facts as to the affiant’s poverty must be stated 15 “with some particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d 16 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 17 1960)). 18 Having read and considered Plaintiff’s application, the Court finds that Plaintiff fails 19 to meet the requirements for IFP status under 28 U.S.C. § 1915. Regarding her income, all 20 fields are given a value of “$0.00,” and Plaintiff lists her total monthly income as “$0.00.” 21 (ECF No. 2 at 1–2.) Similarly, the employment history and cash holdings sections are 22 given values of “$0.00,” and Plaintiff does not list any assets. (Id. at 2–3.) Despite 23 discussing minor children in the Complaint, Plaintiff does not list minor children under the 24 section for persons Plaintiff supports. (Id.) Under expenses, all fields listed as “$0.00,” 25 although, from the Complaint, Plaintiff claims to rent an apartment and have minor 26 children. (Id. at 4–5.) Despite these apparent expenses, Plaintiff lists total monthly 27 expenses as “$0.00.” (Id.) 1 It is not apparent how Plaintiff is obtaining the necessities of life, and in turn whether 2 || this source of funds—if it exists—can cover the required filing fee in this action. The Court 3 ||can draw no conclusions from the incomplete and self-contradictory IFP application. Thus, 4 || the application does not indicate that requiring Plaintiff to pay the required $400 fee would 5 ||impair her ability to obtain the necessities of life. 6 In light of the foregoing, the Court DENIES Plaintiff’s application to proceed IFP 7 || WITHOUT PREJUDICE. (ECF No. 2.) To proceed IFP, Plaintiff must refile the IFP 8 |[application by April 22, 2024 with more specific information regarding the 9 ||aforementioned sources of income and monthly expenses. 10 IT IS SO ORDERED. 11 □ fl 12 || DATED: March 25, 2024 Lill 4 (Bashan 6 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28