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)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GEORGE LIVELL WYNN,

CASE NO. 13CV1479-MMA (DHB)

Plaintiff,

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ORDER:

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DENYING MOTION TO
PROCEED IN FORMA
PAUPERIS;

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[Doc. No. 2]

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vs.

[Doc. No. 3]

Defendants.

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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

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complaint against Defendants the State of California, Department of Justice, and

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Office of the Attorney General Kamal D. Harris1 (“Defendants”). [Doc. No. 1.]

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Although the precise nature of Plaintiff’s claim is unclear, he appears to challenge

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the constitutionality of California Penal Code section 290.5. Plaintiff

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contemporaneously filed a motion for leave to proceed in forma pauperis (“IFP”)

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[Doc. No. 2], and a motion to appoint counsel. [Doc. No. 3.]

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Kamala Harris is the Attorney General for the State of California. Plaintiff’s complaint
mistakenly refers to “Kamal” Harris.
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13cv1479

MOTION TO PROCEED IFP

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A party instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee

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of $400.2 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s

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failure to prepay the entire fee only if the plaintiff is granted leave to proceed in

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forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d

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1176, 1177 (9th Cir. 1999). “To proceed in forma pauperis is a privilege not a

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right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965).

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Plaintiff’s affidavit states he is employed, but fails to state the amount of take-

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home salary he receives each pay period. [Doc. No. 2 at 2.] Plaintiff states he

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receives $198.00 in food stamps each month. He indicates that he has no checking

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or savings account and that he does not own an automobile. [Id.] Plaintiff also

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indicates he has several financial obligations, including $42,000 in student loans,

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$85,000 in child support payments, and over $7,000 in other debts. [Id. at 2-3.]

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Finally, Plaintiff states that he has an unidentifiable asset worth $936.00. [Id. at 3.]

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A party need not be completely destitute to proceed in forma pauperis.

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Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). But “the

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same even-handed care must be employed to assure that federal funds are not

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squandered to underwrite, at public expense, either frivolous claims or the

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remonstrances of a suitor who is financially able, in whole or in material part, to pull

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his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Here, the

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Court finds Plaintiff’s affidavit is incomplete and does not adequately demonstrate

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that he is unable to pay the fees required to maintain this action. Specifically,

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Plaintiff does not indicate his take-home salary or detail his net income compared to

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his monthly expenditures and ongoing debts and obligations. Thus, Plaintiff’s

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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.
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13cv1479

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submission does not demonstrate that he lacks the financial resources or assets to

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pay the costs of commencing this action.

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Accordingly, the Court DENIES without prejudice Plaintiff’s motion to

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proceed IFP. [Doc. No. 2.] Within twenty days of the date of this Order, Plaintiff

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shall either: (a) pay the requisite $400 filing fee, or (b) file a renewed motion for IFP

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containing additional information regarding whether his living expenses would

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objectively prevent him from paying the costs of commencing this action. If

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Plaintiff fails to timely submit payment or a renewed motion for IFP, the Court will

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dismiss Plaintiff’s complaint without prejudice.

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Lastly, as indicated above, Plaintiff also submitted a request for appointment

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of counsel. In light of the Court’s ruling on the IFP motion, the Court DENIES this

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request as moot.

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IT IS SO ORDERED.
DATED: July 1, 2013

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Hon. Michael M. Anello
United States District Judge

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13cv1479