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)

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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

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