Engelbrecht v. Ripa

Filing 3

ORDER Denying 2 Motion to Proceed IFP signed by Magistrate Judge Erica P. Grosjean on 10/16/2017. Fourteen-Day Deadline. (Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TONYA D. ENGELBRECHT, 11 12 Case No. 1:17-cv-01339-LJO-EPG Plaintiff, ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS v. (ECF No. 2) 13 14 15 16 17 18 19 20 21 KELLY RIPA, et al., Defendants. Plaintiff Tonya D. Engelbrecht is proceeding pro se in this action alleging, among other things, defamation of character. (ECF No. 1.) On October 5, 2017, Plaintiff submitted an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.) A civil action may proceed despite a failure to prepay the entire filing fee only if the party initiating the action is granted leave to proceed in forma pauperis. See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The decision whether to grant leave to proceed in forma 22 pauperis is in the sound discretion of the Court. See Calif. Men’s Colony v. Rowland, 939 F.2d 23 854, 858 (9th Cir. 1991) (“Section 1915 typically requires the reviewing court to exercise its 24 sound discretion in determining whether the affiant has satisfied the statute’s requirement of 25 indigency”), rev’d on other grounds, 506 U.S. 194 (1993). “[T]here is no formula set forth by 26 statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” 27 28 Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). In applying to proceed in forma pauperis, a party must submit an affidavit that “state[s] 1 1 the facts as to [the] affiant’s poverty with some particularity, definiteness and certainty.” 2 Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960) (“The right to proceed in forma 3 paupers is not an unqualified one. It is a privilege, rather than a right”). The party “need not be 4 absolutely destitute to obtain benefits of the in forma pauperis statute.” Id. at 725. Nevertheless, 5 the affidavit must show that the party “cannot because of [her] poverty pay or give security for 6 the costs and still be able to provide [herself] and dependents with the necessities of life.” 7 Escobedo, 787 F.3d at 1235 (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 8 (1948)). 9 Here, Plaintiff has failed to demonstrate that she is unable to pay the court’s filing fee due 10 to poverty or indigence. Plaintiff states that she owns a home and a motor vehicle, but fails to 11 state their value. Even so, Plaintiff states that she receives social security disability income of 12 $1,400 per month, has $12,000 in cash or savings, and has no dependents. While a party need not 13 be destitute to obtain benefits of the in forma pauperis statute, (Jefferson, 277 F.2d at 725), 14 Plaintiff’s affidavit demonstrates that she has access to sufficient funds to pay the filing fee and 15 provide herself with basic necessities. Accordingly, Plaintiff’s application to proceed in forma 16 pauperis is denied. 17 Based on the foregoing, IT IS HEREBY ORDERED that: 18 Plaintiff must either pay the filing fee or file an amended in forma pauperis application 19 within fourteen (14) days of the date of this Order. If Plaintiff files an amended application, she 20 must detail her assets and liabilities with particularity, definiteness and certainty to allow the 21 Court to determine whether she is unable to pay the filing fee. 22 No requests for extension will be granted without a showing of good cause. Failure 23 to timely comply with this order will result in a recommendation that this action be 24 dismissed. IT IS SO ORDERED. 25 26 Dated: October 16, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 27 28 2

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