Mora v. United States Trustee

Filing 4

ORDER DENYING 2 MOTION TO PROCEED IN FORMA PAUPERIS; DENYING 3 MOTION FOR CORRECTION. Signed by Judge Edward J. Davila on 1/9/2013. (ejdlc1, COURT STAFF) (Filed on 1/9/2013) (Additional attachment(s) added on 1/9/2013: # 1 Certificate of Service) (ecg, COURT STAFF).

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION 10 CASE NO. 5:12-mc-80280 EJD 11 ORDER DENYING APPELLANT’S MOTION TO PROCEED IN FORMA PAUPERIS; DENYING APPELLANT’S MOTION FOR CORRECTION BERNABE MORA For the Northern District of California United States District Court IN RE: 12 Debtor. 13 14 / BERNABE MORA, 15 [Docket Item No(s). 2, 3] Appellant(s), 16 17 v. UNITED STATES TRUSTEE, 18 Appellee(s). 19 20 / In this action originating in bankruptcy court, presently before the court are two matters: (1) 21 Appellant Bernabe Mora’s (“Appellant”) Motion to Proceed In Forma Pauperis, and (2) Appellant’s 22 Motion for Correction of Erroneous Case Number. See Docket Item Nos. 2, 3. As this court 23 understands its, Appellant has appealed from the bankruptcy court’s order filed September 5, 2012, 24 which dismissed an adversary proceeding due to Appellant’s failure to comply with a prior order. 25 See Docket Item No. 1. Appellant applied for in forma pauperis status before the Bankruptcy 26 Appellate Panel (the “BAP”). Id. The BAP then transferred Appellant’s application to this court for 27 consideration. Id. 28 1 CASE NO. 5:12-mc-80280 EJD ORDER DENYING APPELLANT’S MOTION TO PROCEED IN FORMA PAUPERIS; DENYING APPELLANT'S MOTION FOR CORRECTION 1 Pursuant to 28 U.S.C. § 1915(a)(1), the court “may authorize the commencement, 2 prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without 3 prepayment of fees or security therefor, by a person who submits an affidavit that includes a 4 statement of all assets such [person] prisoner possesses that the person is unable to pay such fees or 5 give security therefor.” District courts have broad discretion to grant or deny a motion to proceed in 6 forma pauperis in a civil action. O’Loughlin v. Doe, 920 F.2d 614, 616-17 (9th Cir. 1990). Indeed, 7 “[t]he right to proceed in forma pauperis is not an unqualified one.” Jefferson v. United States, 277 8 F.2d 723, 725 (9th Cir. 1960). “It is a privilege, rather than a right.” Id. Accompanying Motion for Permission to Appeal In Forma Pauperis” dated October 31, 2011 (the 11 For the Northern District of California Here, Appellant has supported his motion with the following documents: (1) an “Affidavit 10 United States District Court 9 “2011 application”), and (2) an “Affidavit of Financial Status,” in which Plaintiff states he has 12 “reason to believe” that his 2011 application was previously approved by the district court in one of 13 two other cases also filed in this district, namely Mora v. Wachovia Mortgage FSB, Case No. 5:10- 14 cv-05951 JF, and Mora v. Litton Loan Servicing, Case No. 5:11-cv-02319 LHK. 15 The court has reviewed the other cases cited by Appellant and takes judicial notice of the 16 their respective district court and appellate dockets.1 The 2011 application was not filed in the 17 district court for either case. Thus, it does not appear the district court has made a determination on 18 the 2011 application as indicated by Appellant. 19 However, the court notes that in the Litton action,2 the following occurred: (1) on September 20 12, 2011, the Court of Appeals ordered Appellant to either file an in forma pauperis application, pay 21 the filing fee, or show cause why the case should not be dismissed for failure to prosecute, (2) on 22 November 2, 2011, Appellant filed the 2011 application in the Court of Appeal, and (3) on 23 December 8, 2011, the Court of Appeals denied Appellant’s in forma pauperis application because it 24 25 26 27 1 Appellant also filed one other case against Litton Loan Servicing, 5:10-cv-02854 LHK, but that case was dismissed well before the date on which Appellant signed the 2011 application. As such, this earlier case does not appear to be the one referenced by Appellant in the “Affidavit of Financial Status.” 2 28 The appellate case number is 11-17133. 2 CASE NO. 5:12-mc-80280 EJD ORDER DENYING APPELLANT’S MOTION TO PROCEED IN FORMA PAUPERIS; DENYING APPELLANT'S MOTION FOR CORRECTION 1 2 found that the appeal was frivolous and that Appellant was not indigent. While this court is aware of its obligation to redetermine Appellant’s financial condition 3 under § 1915(a) despite his submission of a previous application (see Holmes v. Hardy, 852 F.2d 4 151, 153 (5th Cir. 1988)), the fact that the Court of Appeal found the 2011 application insufficient to 5 support in forma pauperis status is nonetheless compelling. In addition, the court cannot ignore that 6 Appellant’s current reliance on the 2011 application is not indicative of his present financial 7 circumstances, especially since Appellant did not a represent that the 2011 application is still 8 accurate in the instant motion. That circumstance alone is sufficient to deny Appellant’s motion. 9 But even assuming the 2011 is still accurate, the court would still find that Appellant is not indigent 11 For the Northern District of California United States District Court 10 after reviewing it anew and applying the standards required by § 1915(a). Accordingly, Appellant’s Motion to Proceed In Forma Pauperis (Docket Item No. 2) is 12 DENIED. The Motion for Correction of Erroneous Case Number (Docket Item No. 3) is also 13 DENIED because the clerk’s assignment of a miscellaneous case number was not in error. The 14 appeal to the BAP from the bankruptcy court’s dismissal order did not arise from one of Appellant’s 15 other district court cases. 16 IT IS SO ORDERED. 17 18 Dated: January 9, 2013 EDWARD J. DAVILA United States District Judge 19 20 21 22 23 24 25 26 27 28 3 CASE NO. 5:12-mc-80280 EJD ORDER DENYING APPELLANT’S MOTION TO PROCEED IN FORMA PAUPERIS; DENYING APPELLANT'S MOTION FOR CORRECTION

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