Baize v. Austin

Filing 4

ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. Court dismisses this action in its entirety with prejudice under 28 USC 1915(e)(2)(B)(i) because it is frivolous. Court terminates as moot Plaintiff's 3 Motion to Appoint Counsel because this action is being dismissed. Signed by Judge Cynthia Bashant on 8/3/2016. (All non-registered users served via U.S. Mail Service) (jah)

1
2
3
4
5
6
7
8
9
10

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12
13

DEBBIE BAIZE,
Plaintiff,

14
15
16
17

Case No. 16-cv-01893-BAS(RBB)
ORDER:
(1) GRANTING MOTION FOR
LEAVE TO PROCEED IN
FORMA PAUPERIS (ECF
NO. 2);

v.
LLOYD BURTON AUSTIN,

(2) DISMISSING ACTION AS
FRIVOLOUS UNDER 28
U.S.C. 1915(e); AND

Defendant.

18
19

(3) TERMINATING AS MOOT
MOTION TO APPOINT
COUNSEL

20
21

[ECF Nos. 2, 3]

22
23

On July 27, 2016, Plaintiff Debbie Baize, proceeding pro se, filed a

24

handwritten complaint against Defendant Lloyd Burton Austin asserting he “made

25

false charges of elder abuse and lied under oath.” (ECF No. 1.) On the same day,

26

Plaintiff also filed a motion seeking leave to proceed in forma pauperis (“IFP”) and

27

a motion to appoint counsel. (ECF Nos. 2, 3.) For the following reasons, the Court:

28

(1) GRANTS Plaintiff’s IFP motion (ECF No. 2); (2) DISMISSES this action as
–1–

16cv1893

1

frivolous under 28 U.S.C. 1915(e); and (3) TERMINATES AS MOOT Plaintiff’s

2

motion to appoint counsel (ECF No. 3).

3
4

I.

MOTION FOR LEAVE TO PROCEED IFP

5

Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay

6

the required fees or security to commence a legal action may petition the court to

7

proceed without making such payment. The determination of indigency falls within

8

the district court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th

9

Cir. 1991), rev’d on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915

10

typically requires the reviewing court to exercise its sound discretion in determining

11

whether the affiant has satisfied the statute’s requirement of indigency”). It is well-

12

settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I.

13

DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To satisfy the

14

requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which

15

states that one cannot because of his poverty pay or give security for costs . . . and

16

still be able to provide himself and dependents with the necessities of life.” Id. at 339.

17

At the same time, however, “the same even-handed care must be employed to assure

18

that federal funds are not squandered to underwrite, at public expense . . . the

19

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

20

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

21

District courts, therefore, tend to reject IFP applications where the applicant

22

can pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer

23

v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other

24

grounds by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that the district

25

court did not abuse its discretion in requiring a partial fee payment from a prisoner

26

who had a $14.61 monthly salary and who received $110 per month from family).

27

Moreover, “in forma pauperis status may be acquired and lost during the course of

28

litigation.” Wilson v. Dir. of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL
–2–

16cv1893

1

311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F. Supp. at 321); see

2

also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that

3

a plaintiff who was initially permitted to proceed in forma pauperis should be

4

required to pay his $120 filing fee out of a $900 settlement). Finally, the facts as to

5

the affiant’s poverty must be stated “with some particularity, definiteness, and

6

certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).

7

Having read and considered Plaintiff’s application, the Court finds that

8

Plaintiff meets the requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff is

9

unemployed and receives $1,054.00 per month in retirement income. (IFP Mot. ¶¶ 1,

10

2.) No other sources of income are listed. (Id.) Plaintiff’s monthly expenses include

11

$650.00 for rent and $300.00 for medical and dental expenses. (Id. ¶ 8.) Plaintiff does

12

not own an automobile, real estate, or any other significant asset. (Id. ¶ 5.) Under

13

these circumstances, the Court finds that requiring Plaintiff to pay the court filing

14

fees would impair her ability to obtain the necessities of life. See Adkins, 335 U.S. at

15

339.
In light of the foregoing, the Court GRANTS Plaintiff’s application for leave

16
17

to proceed IFP (ECF No. 2).

18
19

II.

DISMISSAL UNDER 28 U.S.C. § 1915(e)

20

Under 28 U.S.C. § 1915(e)(2)(B)(i), the court must dismiss an action where

21

the plaintiff is proceeding IFP if the court determines that the action “is frivolous or

22

malicious.” An IFP complaint “is frivolous if it has ‘no arguable basis in fact or law.’”

23

O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (quoting Franklin v. Murphy,

24

745 F.2d 1221, 1228 (9th Cir.1984)). In addition, an IFP complaint “that merely

25

repeats pending or previously litigated claims” is subject to dismissal as frivolous.

26

See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (quoting Bailey v.

27

Johnson, 846 F.2d 1019, 1021 (5th Cir.1988)) (construing former version of 28

28

U.S.C. § 1915(d), which then governed dismissal for frivolousness); see also
–3–

16cv1893

1

Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984) (affirming dismissal of

2

plaintiff’s claims as “frivolous or malicious” where the plaintiff’s four previous

3

actions concerning the same issue were dismissed for lack of subject matter

4

jurisdiction).

5

Here, the Court finds Plaintiff’s Complaint is frivolous because it merely

6

repeats claims that have been previously dismissed with prejudice in two actions.

7

Plaintiff alleges Defendant “made false charges of elder abuse and lied under oath.”

8

(Compl., ECF No. 1.) She seeks to clear her name of “all false allegations and charges

9

made against [her] personally” and requests compensation for “false imprisonment.”

10

(Id.) Plaintiff made the same allegations in a previous action against Austin Burton

11

Lloyd, who is presumably the same person as Defendant Lloyd Burton Austin. See

12

Complaint, Baize v. Lloyd, No. 14-CV-02573-BAS(JMA) (S.D. Cal. Oct. 29, 2014),

13

ECF No. 1. In that case, this Court granted Plaintiff IFP status, but it dismissed her

14

action without prejudice for lack of subject matter jurisdiction and for failure to state

15

a claim. Order, Baize v. Lloyd, No. 14-CV-02573-BAS(JMA) (S.D. Cal. Nov. 13,

16

2014), ECF No. 4. Plaintiff amended her complaint, but the Court again dismissed

17

her action. Baize v. Lloyd, No. 14-CV-02573-BAS(JMA), 2015 WL 2165293, at *1

18

(S.D. Cal. May 7, 2015). Next, after Plaintiff amended her complaint for the final

19

time, the Court dismissed the action with prejudice for failure to state a claim. Baize

20

v. Lloyd, No. 14-CV-02573-BAS(JMA), 2015 WL 5040047, at *4 (S.D. Cal. Aug.

21

26, 2015).

22

Thereafter, Plaintiff filed another action against Defendant regarding the same

23

allegations made in her first action. See Complaint, Baize v. Austin, 15-cv-02547-

24

LAB(WVG) (S.D. Cal. Nov. 12, 2015), ECF No. 1. This second action was similarly

25

dismissed with prejudice after Plaintiff failed to establish subject matter jurisdiction

26

or explain why the action was not related to her previous case. Order, Baize v. Austin,

27

15-cv-02547-LAB(WVG) (S.D. Cal. Feb. 29, 2016), ECF No. 8.

28

//
–4–

16cv1893

1

Based on the foregoing, the Court finds Plaintiff’s Complaint “merely repeats

2

pending or previously litigated claims” that were dismissed with prejudice in the two

3

prior actions described above. See Cato, 70 F.3d at 1105 n.2. Therefore, this action

4

is frivolous, and it must be dismissed. See id.; 28 U.S.C. § 1915(e)(2)(B)(i); see also

5

Denton, 504 U.S. at 30 (recognizing Congress’s concern that “a litigant whose filing

6

fees and court costs are assumed by the public, unlike a paying litigant, lacks an

7

economic incentive to refrain from filing frivolous, malicious, or repetitive

8

lawsuits”).1

9
10

III.

CONCLUSION

11

In sum, the Court GRANTS Plaintiff’s motion to proceed IFP (ECF No. 2).

12

However, the Court also DISMISSES WITH PREJUDICE this action in its entirety

13

under 28 U.S.C. § 1915(e)(2)(B)(i) because it is frivolous. In addition, the Court

14

TERMINATES AS MOOT Plaintiff’s motion to appoint counsel (ECF No. 3)

15

because this action is being dismissed.

16

IT IS SO ORDERED.

17
18

DATED: August 3, 2016

19
20
21
22
23
24
25
26
27
28

1

The Court also finds it appropriate to dismiss this action for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and for lack of subject matter jurisdiction for the same
reasons expressed in its prior order. See Order, Baize v. Lloyd, No. 14-CV-02573-BAS(JMA) (S.D.
Cal. Nov. 13, 2014), ECF No. 4.
–5–

16cv1893