Wynn v. California, State of et al

Filing 5

ORDER: Denying 2 Motion for Leave to Proceed in forma pauperis; Denying as Moot 3 Motion for Appointment of Counsel. The Court Orders the Plaintiff to file within 20 days of the date of this Order to: (a) pay the requisite $400 filing fee, or (b) file a renewed motion for IFP containing additional information stated herein. If Plaintiff fails to timely submit payment or a renewed motion for IFP, the Court will dismiss Plaintiff's complaint without prejudice. Signed by Judge Michael M. Anello on 7/1/2013. (All non-registered users served via U.S. Mail Service)(leh)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GEORGE LIVELL WYNN, CASE NO. 13CV1479-MMA (DHB) Plaintiff, 12 ORDER: 14 DENYING MOTION TO PROCEED IN FORMA PAUPERIS; 15 [Doc. No. 2] 13 16 17 18 vs. [Doc. No. 3] Defendants. 19 20 DENYING REQUEST FOR APPOINTMENT OF COUNSEL AS MOOT STATE OF CALIFORNIA; DEPARTMENT OF JUSTICE; OFFICE OF THE ATTORNEY GENERAL KAMAL D. HARRIS, Plaintiff George L. Wynn, proceeding pro se, initiated this action by filing a 21 complaint against Defendants the State of California, Department of Justice, and 22 Office of the Attorney General Kamal D. Harris1 (“Defendants”). [Doc. No. 1.] 23 Although the precise nature of Plaintiff’s claim is unclear, he appears to challenge 24 the constitutionality of California Penal Code section 290.5. Plaintiff 25 contemporaneously filed a motion for leave to proceed in forma pauperis (“IFP”) 26 [Doc. No. 2], and a motion to appoint counsel. [Doc. No. 3.] 27 28 1 Kamala Harris is the Attorney General for the State of California. Plaintiff’s complaint mistakenly refers to “Kamal” Harris. -1- 13cv1479 MOTION TO PROCEED IFP 1 2 A party instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee 4 of $400.2 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s 5 failure to prepay the entire fee only if the plaintiff is granted leave to proceed in 6 forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 7 1176, 1177 (9th Cir. 1999). “To proceed in forma pauperis is a privilege not a 8 right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). 9 Plaintiff’s affidavit states he is employed, but fails to state the amount of take- 10 home salary he receives each pay period. [Doc. No. 2 at 2.] Plaintiff states he 11 receives $198.00 in food stamps each month. He indicates that he has no checking 12 or savings account and that he does not own an automobile. [Id.] Plaintiff also 13 indicates he has several financial obligations, including $42,000 in student loans, 14 $85,000 in child support payments, and over $7,000 in other debts. [Id. at 2-3.] 15 Finally, Plaintiff states that he has an unidentifiable asset worth $936.00. [Id. at 3.] 16 A party need not be completely destitute to proceed in forma pauperis. 17 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). But “the 18 same even-handed care must be employed to assure that federal funds are not 19 squandered to underwrite, at public expense, either frivolous claims or the 20 remonstrances of a suitor who is financially able, in whole or in material part, to pull 21 his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Here, the 22 Court finds Plaintiff’s affidavit is incomplete and does not adequately demonstrate 23 that he is unable to pay the fees required to maintain this action. Specifically, 24 Plaintiff does not indicate his take-home salary or detail his net income compared to 25 his monthly expenditures and ongoing debts and obligations. Thus, Plaintiff’s 26 27 2 28 In addition to the filing fee of $350, the District Court Miscellaneous Fee Schedule, effective May 1, 2013, requires payment of an administrative fee for filing a civil action in district court of $50. See 28 U.S.C. § 1914(a) and District Court Miscellaneous Fee Schedule, note 14. -2- 13cv1479 1 submission does not demonstrate that he lacks the financial resources or assets to 2 pay the costs of commencing this action. 3 Accordingly, the Court DENIES without prejudice Plaintiff’s motion to 4 proceed IFP. [Doc. No. 2.] Within twenty days of the date of this Order, Plaintiff 5 shall either: (a) pay the requisite $400 filing fee, or (b) file a renewed motion for IFP 6 containing additional information regarding whether his living expenses would 7 objectively prevent him from paying the costs of commencing this action. If 8 Plaintiff fails to timely submit payment or a renewed motion for IFP, the Court will 9 dismiss Plaintiff’s complaint without prejudice. 10 Lastly, as indicated above, Plaintiff also submitted a request for appointment 11 of counsel. In light of the Court’s ruling on the IFP motion, the Court DENIES this 12 request as moot. 13 14 IT IS SO ORDERED. DATED: July 1, 2013 15 16 Hon. Michael M. Anello United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 -3- 13cv1479

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?