Mears v. Pride Industries, Inc. et al

Filing 3

ORDER Denying 2 Motion for Leave to Proceed in forma pauperis. Motion is Denied pursuant to 28 USC 1915(g). Signed by Judge Thomas J. Whelan on 1/23/2017. (dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN MEARS,

Case No.: 16-CV-3095 W (WVG)
Plaintiff,

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v.

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ORDER DENYING MOTION TO
PROCEED IFP [DOC. 2]

PRIDE INDUSTRIES, INC.,

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Defendant.

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Plaintiff John Mears has filed a motion to proceed in forma pauperis (“IFP”) (the

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“Motion” [Doc. 2]). The determination of indigency falls within the district court’s

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discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991),

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reversed on other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing

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court to exercise its sound discretion in determining whether the affiant has satisfied the

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statute’s requirement of indigency.”).

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It is well-settled that a party need not be completely destitute to proceed in forma

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pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To
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16-CV-3095 W (WVG)

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

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

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

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

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funds are not squandered to underwrite, at public expense, ... the remonstrances of a suitor

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who is financially able, in whole or in material part, to pull his own oar.” Temple v.

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Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).

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

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the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey,

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851 F.Supp. 316, (N.D.Cal. 1994), vacated in part on other grounds, Olivares v. Marshall, 59

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F.3d 109 (9th Cir. 1995) (finding that district court did not abuse discretion in requiring

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partial fee payment from prisoner with $14.61 monthly salary and $110 per month from

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family); Allen v. Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (Plaintiff initially

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permitted to proceed in forma pauperis, later required to pay $120 filing fee out of $900

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settlement proceeds); Ali v. Cuyler, 547 F.Supp. 129, 130 (E.D. Pa. 1982) (in forma

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pauperis application denied: “plaintiff possessed savings of $450 and the magistrate

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correctly determined that this amount was more than sufficient to allow the plaintiff to pay

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the filing fee in this action.”). Moreover, the facts as to the affiant’s poverty must be stated

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“with some particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d

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938, 940 (9th Cir. 1981).

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Here, the application Plaintiff used to apply for IFP status required him to identify

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any sources of “other income,” including “the amount that you received.” (See Motion ¶ 3.)

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Plaintiff acknowledged that he “receives unemployment insurance (EDD)” but he failed to

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identify the amount he receives. (Id.) Without that information, the Court cannot

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//

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//

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evaluate if Plaintiff satisfies the requirements for IFP status. Accordingly, Plaintiff’s

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Motion [Doc. 2] is DENIED without prejudice.

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IT IS SO ORDERED.
Dated: January 23, 2017

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