Pogue et al v. San Diego Superior Court et al

Filing 4

ORDER denying Plaintiffs' 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion for TRO. Court directs Plaintiffs to provide a current address for Mr. and Mrs. Sikking in accordance with Civil Local Rule 83.11(b). Signed by Judge Cynthia Bashant on 5/30/2017. (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

LEON-QIYAM POGUE, et al.,
Plaintiffs,

14
15
16
17
18

Case No. 17-cv-01091-BAS-JMA
ORDER:
(1) DENYING PLAINTIFFS’
MOTION FOR LEAVE TO
PROCEED IN FORMA
PAUPERIS (ECF No. 2); AND

v.
SAN DIEGO SUPERIOR COURT,
et al.,

(2) DENYING PLAINTIFFS’
MOTION FOR TEMPORARY
RESTRAINING ORDER
(ECF No. 3)

Defendants.

19
20

Plaintiffs Leon-Qiyam Pogue, Jeff Sikking, and Barbara Sikking are

21

proceeding pro se—without an attorney. They filed a complaint on May 26, 2017,

22

against (1) the San Diego Superior Court, (2) Richardson Griswold, a receiver

23

appointed by the San Diego Superior Court, and (3) Agent Salazar, an employee with

24

the City of San Diego’s Code Enforcement Division. Plaintiffs seek injunctive relief

25

related to a public nuisance abatement action brought against Mr. Sikking and Mrs.

26

Sikking in state court. They also filed a motion for leave to proceed in forma pauperis

27

(“IFP”)—without prepaying court fees or costs—and a document that the Court will

28

broadly construe as a request for a temporary restraining order.
–1–

17cv1091

For the following reasons, the Court DENIES Plaintiffs’ (i) motion to proceed

1
2

IFP and (ii) request for a temporary restraining order.

3

I.

MOTION FOR LEAVE TO PROCEED IFP

4

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

5

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

6

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

7

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

8

Cir. 1991) (holding that “Section 1915 typically requires the reviewing court to

9

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

10

statute’s requirement of indigency”), rev’d on other grounds, 506 U.S. 194 (1993).

11

It is well-settled that a party need not be completely destitute to proceed IFP. Adkins

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (finding that the district court

23

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

24

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

25

in part on other grounds by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995).

26

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

27

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

28

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

17cv1091

1

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

2

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

3

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

4

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

5

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

6

“In addition, although only one filing fee needs to be paid per case, if multiple

7

plaintiffs seek to proceed in forma pauperis, each plaintiff must qualify for IFP

8

status.” Anderson v. California, No. 10-cv-2216 MMA AJB, 2010 WL 4316996, at

9

*1 (S.D. Cal. Oct. 27, 2010); accord, e.g., Seligman v. Hart, No. 12-cv-3067-LAB

10

BGS, 2013 WL 371991, at *1 (S.D. Cal. Jan. 15, 2013); Darden v. Indymac Bancorp,

11

Inc., No. S-09-2970 JAM DAD PS, 2009 WL 5206637, at *1 (E.D. Cal. Dec. 23,

12

2009).

13

In this case, there are three Plaintiffs—Mr. Pogue, Mr. Sikking, and Mrs.

14

Sikking.1 (ECF No. 1.) They have not paid the filing fee. Plaintiffs have, however,

15

submitted a single IFP application. (ECF No. 2.) This application is signed by only

16

Mr. Pogue, and it does not contain any information about either Mr. Sikking or Mrs.

17

Sikking. Consequently, the Court is unable to discern whether Mr. Sikking and Mrs.

18

Sikking qualify to proceed IFP. Although Plaintiffs may proceed without paying the

19

single filing fee required for this case, they cannot do so unless each Plaintiff

20

qualifies for IFP status. That is, each Plaintiff must submit an appropriate IFP

21

application that is signed by that Plaintiff and includes financial information that is

22

specific to that person. Because the filing fee has not been paid and only one Plaintiff

23
24
25
26
27
28

1

Mr. Sikking and Mrs. Sikking have not provided the Court with a current address. Under
Civil Local Rule 83.11(a), a “person who is appearing propria persona, (without an attorney) (i.e.
pro se) must appear personally for such purpose and may not delegate that duty to any other person,
including husband or wife, or another party on the same side appearing without an attorney.”
Further, any “party proceeding pro se must keep the court and opposing parties advised as to [the
party’s] current address.” Civ. L.R. 83.11(b). Thus, the Court will direct Plaintiffs below to provide
it with a current address for Mr. Sikking and Mrs. Sikking.
–3–

17cv1091

1

has submitted information regarding an inability to pay the filing fee, the Court

2

DENIES Plaintiffs’ request to proceed IFP (ECF No. 2).

3

II.

TEMPORARY RESTRAINING ORDER

4

Plaintiffs have also filed a “Temporary Restraining Order (TRO) Checklist.”

5

(ECF No. 3.) This document is a form required by another court, the U.S. District

6

Court for the Eastern District of California, when a party files a motion for a TRO in

7

that court. (See id.) There is no motion, memorandum of points and authorities,

8

supporting declaration, or proposed order submitted with this checklist. (See id.) That

9

said, in light of Plaintiffs’ pro se status, the Court will broadly construe this filing as

10
11
12

a request for a TRO.
Federal Rule of Civil Procedure 65(b) governs temporary restraining orders.
This rule provides:

13

(1) Issuing Without Notice. The court may issue a temporary restraining

14

order without written or oral notice to the adverse party or its attorney

15

only if:

16

(A) specific facts in an affidavit or a verified complaint clearly

17

show that immediate and irreparable injury, loss, or damage will

18

result to the movant before the adverse party can be heard in

19

opposition; and

20

(B) the movant’s attorney certifies in writing any efforts made to

21

give notice and the reasons why it should not be required.

22

Fed. R. Civ. P. 65(b)(1). This rule’s “stringent restrictions . . . on the availability of

23

ex parte temporary restraining orders reflect the fact that our entire jurisprudence

24

runs counter to the notion of court action taken before reasonable notice and an

25

opportunity to be heard has been granted both sides of a dispute.” Granny Goose

26

Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 438–39 (1974). “Consistent with this

27

overriding concern, courts have recognized very few circumstances justifying the

28
–4–

17cv1091

1

issuance of an ex parte TRO.” Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d

2

1126, 1131 (9th Cir. 2006).

3

Here, Plaintiffs do not demonstrate that they have provided notice of their

4

request for a TRO to each of Defendants. In their filing, Plaintiffs state they asked

5

“the receiver,” presumably Defendant Griswold, to “inform the court that a receiver

6

was not required at this time” and to “stipulate that if he did not inform the state court

7

that the basis for appointing a receiver in the first place was based upon false

8

statements [and] insufficient evidence . . . , then we had [no] other available remedy

9

than to seek [a] federal TRO.” (ECF No. 3.) This showing does not establish that

10

each of Defendants has received adequate notice of Plaintiffs’ request or that there is

11

a justifiable reason for issuing a TRO without notice. See McCord, 452 F.3d at 1131

12

(noting an ex parte TRO may be appropriate when it is impossible to provide notice

13

to the adverse party because the party cannot be located in time for a hearing or the

14

identity of the party is unknown); see also Fed. R. Civ. P. 65(b)(1)(B). Further, the

15

Court finds Plaintiffs have not set forth “specific facts” that “clearly show that

16

immediate and irreparable injury, loss, or damage will result to [Plaintiffs] before

17

[Defendants] can be heard in opposition.” See Fed. R. Civ. P. 65(b)(1)(A). They also

18

have not shown injunctive relief is otherwise appropriate. Accordingly, the Court

19

DENIES their request for a TRO.

20

III.

CONCLUSION

21

In light of the foregoing, the Court DENIES Plaintiffs’ application to proceed

22

IFP (ECF No. 2). To continue with this case, Plaintiffs must either pay the filing fee

23

or Mr. Sikking and Mrs. Sikking must each also file an appropriate application to

24

proceed IFP. Further, the Court DENIES Plaintiffs’ request for a TRO (ECF No. 3).

25

Last, the Court directs Plaintiffs to provide it with a current address for Mr. Sikking

26

and Mrs. Sikking in accordance with Civil Local Rule 83.11(b).

27
28

IT IS SO ORDERED.
DATED: May 30, 2017
–5–

17cv1091