Smith-Cousins v. Luccil

Filing 4

ORDER Denying 2 Motion to Proceed in Forma Pauperis without Prejudice; Denying 3 Motion to Appoint Counsel without Prejudice. Within fourteen days of the date of this Order, Plaintiff shall either: (a) pay the requisite $400 filing fee, or (b) file a renewed motion for IFP containing the requisite information regarding his ability to pay the costs of commencing this action. If Plaintiff fails to timely submit payment or a renewed motion for IFP, this case must be dismissed. Signed by Judge Michael M. Anello on 5/2/2017. (All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17cv0848-MMA (JLB)

JONATHON C. SMITH-COUSINS,

ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS;

Plaintiff,
v.

[Doc. No. 2]

CRAMBINE LUCCIL,

DENYING MOTION TO APPOINT
COUNSEL

Defendant.

[Doc. No. 3]

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On April 26, 2017, Plaintiff Jonathon C. Smith-Cousins filed this action, and

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simultaneously filed a motion to proceed in forma pauperis (“IFP”) and a motion for

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appointment of counsel. See Doc. Nos. 1, 2, 3.

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DISCUSSION
All parties 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 of

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$400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. §

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1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in

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forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.

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1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v.

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E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). But “the same even-1-

17cv0848-MMA (JLB)

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handed care must be employed to assure that federal funds are not squandered to

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underwrite, at public expense, either frivolous claims or 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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Plaintiff does not provide sufficient information for the Court to determine whether

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he should be granted IFP status. For example, Plaintiff provides contradictory responses

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regarding his monthly income, stating both that he has no monthly income and also that

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he receives $984.00 in monthly disability payments. Similarly, Plaintiff indicates that he

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pays $75.00 per month for motor vehicle insurance, but lists his monthly expenses as

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$0.00. Further, Plaintiff does not provide the value of the car that he lists as an asset, nor

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does he respond to Question 12 by identifying the city and state where he resides.

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Plaintiff must answer every question listed on the IFP application form.

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Based on the foregoing, the Court concludes it lacks sufficient information to

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determine whether or not it is outside of Plaintiff’s means to pay the costs of

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commencing this action. Accordingly, the Court DENIES without prejudice Plaintiff’s

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motion to proceed IFP. Doc. No. 2; see Civ. L.R. 3.2. Within fourteen days of the date

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of this Order, Plaintiff shall either: (a) pay the requisite $400 filing fee, or (b) file a

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renewed motion for IFP containing the requisite information regarding his ability to pay

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the costs of commencing this action. If Plaintiff fails to timely submit payment or a

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renewed motion for IFP, this case must be dismissed. Lastly, the Court DENIES

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Plaintiff’s motion for appointment of counsel without prejudice to Plaintiff refiling his

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motion. See Doc. No. 3.

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IT IS SO ORDERED.

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Date: May 2, 2017

_____________________________
Hon. Michael M. Anello
United States District Judge

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17cv0848-MMA (JLB)