Scrigna v. Romney et al

Filing 5

ORDER Denying 2 Plaintiff's Application to Proceed In Forma Pauperis; and Deferring Ruling on 3 Plaintiff's Motion for Injunction. Signed by Judge Edward M. Chen on 11/15/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 11/15/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANGELO Y. SCRIGNA,

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For the Northern District of California

United States District Court

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No. C-12-5704 EMC

Plaintiff,
v.
MITT ROMNEY, et al.,
Defendants.
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ORDER DENYING PLAINTIFF’S
APPLICATION TO PROCEED IN
FORMA PAUPERIS; AND DEFERRING
RULING ON PLAINTIFF’S MOTION
FOR INJUNCTION
(Docket Nos. 2-3)

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Plaintiff Angelo Y. Scrigna has filed suit against Defendants Mitt Romney, al-Qaeda, and

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Reed Smith LLP. Currently pending before the Court are Mr. Scrigna’s application to proceed in

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forma pauperis and his motion for an injunction.

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The Court addresses first the application to proceed in forma pauperis. When presented with

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such an application, a court must first determine if the applicant satisfies the economic eligibility

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requirement of 28 U.S.C. § 1915(a). See Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir.

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1984). Section 1915(a) does not require an applicant to demonstrate absolute destitution. See

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McCone v. Holiday Inn Convention Ctr., 797 F.2d 853, 854 (10th Cir. 1982) (citing Adkins v. E.I.

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Du Pont de Nemours & Co., Inc., 335 U.S. 331, 339(1948)). Nevertheless, having reviewed Mr.

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Scrigna’s financial affidavit, the Court concludes that he has not satisfied the economic eligibility

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requirement. Although Mr. Scrigna states in his affidavit that he is not presently employed, has

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monthly expenses of approximately $1,800, and has a credit card debt of $8,000, he also identifies

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significant assets, in particular, a $60,000 home for which he has no mortgage and $6,000 in cash.

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The Court therefore denies Mr. Scrigna’s application.

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In order for Mr. Scrigna to proceed with this lawsuit, he must pay the filing fee of $350. The

opportunity to decide whether he intends to pursue this lawsuit. Much of the relief he has sought has

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effectively been rendered moot now that President Obama has been re-elected. To the extent Mr.

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Scrigna still seeks monetary damages, the Court has serious doubts about the viability of his claims.

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For example, it is not clear how Mr. Scrigna has suffered any monetary damages. Furthermore, Mr.

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Scrigna’s claim that the Reed Smith law firm has represented Mitt Romney is not supported by the

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document he has submitted (i.e., the bloomberg.com articles). Finally, simply because attorneys at

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For the Northern District of California

Court, however, shall temporarily defer payment of the fee in order to give Mr. Scrigna an

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United States District Court

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Reed Smith may have represented detainees at Guantanamo Bay is far from proof that the firm has

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represented al-Qaeda.

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If Mr. Scrigna chooses to pursue this litigation and pay the filing fee, then the Court intends

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to issue an order to show cause, instructing Mr. Scrigna to explain why his case should not be

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dismissed (with prejudice) based on the problems identified above. See Franklin, 745 F.2d at 1226

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(noting that, “[w]here the plaintiff has paid the filing fees, the court may not dismiss [the] action

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before process is issued and served, and without giving [the] plaintiff notice that the court intends to

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dismiss, an opportunity to oppose it, and a statement of the grounds for dismissal, and an

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opportunity to amend”). However, if Mr. Scrigna decides not to pursue this litigation, then the

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Court shall not require him to pay the filing fee.

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Accordingly, the Court hereby orders that Mr. Scrigna has until December 3, 2012, to pay

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the filing fee of $350 in order to continue this lawsuit. If Mr. Scrigna does not pay the fee, then this

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case shall automatically be dismissed (without prejudice). If Mr. Scrigna does pay the fee, then this

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case shall proceed and Mr. Scrigna will have the responsibility of serving the complaint and any

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amendments, scheduling orders, and attachments pursuant to Federal Rule of Civil Procedure 4 on

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all Defendants. Mr. Scrigna will also have a continuing obligation to keep the Court informed of his

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current address. Failure to do so may result in dismissal of this action. Finally, Mr. Scrigna can

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expect this Court will issue an order to show cause as to why his case should not be dismissed (with

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prejudice) based on the problems identified by the Court above.

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IT IS SO ORDERED.

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Dated: November 15, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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