Ross v. Padres LP et al

Filing 4

ORDER (1) Denying 2 Motion for Leave to Proceed in forma pauperis and (2) Denying 3 Motion to Appoint Counsel. The Court Denies without prejudice Plaintiff's Motion to Proceed IFP ECF No. 2 . Consequently, the Court Denies without prejudi ce Plaintiff's Motion to Appoint Counsel ECF No. 3 . To proceed with his case, Plaintiff may, within 30 days of the date on which this Order is electronically docketed, either (1) pay the $400 filing fee for civil cases, or (2) file a new motion to proceed in forma pauperis that addresses the Court's above-mentioned concerns. Signed by Judge Janis L. Sammartino on 8/29/2017. (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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VAN J. ROSS,

Case No.: 17-CV-1676 JLS (JLB)
Plaintiff,

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ORDER (1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AND (2) DENYING MOTION TO
APPOINT COUNSEL

v.
PADRES LP, et al.,

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Defendants.
(ECF Nos. 2, 3)

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Presently before the Court is Plaintiff Van J. Ross’s Motion to Proceed In Forma

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Pauperis (“IFP”). (“IFP Mot.,” ECF No. 2.) Also before the Court is Plaintiff’s Motion to

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Appoint Counsel. (“Counsel Mot.,” ECF No. 3.)

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IFP MOTION

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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 prepay

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the entire fee only if he is granted leave to proceed in forma pauperis pursuant to 28 U.S.C.
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17-CV-1676 JLS (JLB)

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§ 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court

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may authorize the commencement of an action without the prepayment of fees if the party

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submits an affidavit, including a statement of assets, showing that he is unable to pay the

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required filing fee. 28 U.S.C. § 1915(a).

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In the present case, Plaintiff has submitted an affidavit indicating that he has received

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an average monthly employment income of $2,100 over the past twelve months. (IFP Mot.

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1.1) However, he notes that he will soon be leaving his current job, (id. at 6), and thus he

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expects his average monthly employment income to be roughly $1,400 going forward, (id.

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at 1). Plaintiff also notes that he will be receiving $732 for retirement benefits and $208

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for unemployment benefits on a monthly basis. (Id. at 3.) This leads to a total average

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monthly income of roughly $2,350. Plaintiff also has $200 in savings accounts, (id. at 3),

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and has two cars valued at $2,400, (id. at 4). His spouse does not have any source of

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income. (See generally id.) However, Plaintiff notes that their combined average monthly

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expenses total well over $3,000. (See id. at 5–6.) This total is likely higher given that

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Plaintiff lists “varies” for items such as medical and dental expenses, home maintenance,

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and recreation/entertainment. (Id. at 5.) This at the very least suggests that Plaintiff either

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has some other source of income or has not fully explained his financial situation to the

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Court. Given the vast discrepancy between Plaintiff’s claimed monthly income and his

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claimed monthly expenses, the Court is unable to determine whether Plaintiff’s affidavit is

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credible and thus cannot accurately assess his ability to pay the $400 civil filing fee.

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Accordingly, the Court DENIES Plaintiff’s Motion to Proceed IFP.

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CONCLUSION

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Based on the foregoing, the Court DENIES WITHOUT PREJUDICE Plaintiff’s

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Motion to Proceed IFP (ECF No. 2). Consequently, the Court DENIES WITHOUT

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PREJUDICE Plaintiff’s Motion to Appoint Counsel (ECF No. 3). To proceed with his

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Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each
page.
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17-CV-1676 JLS (JLB)

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case, Plaintiff may, within thirty days of the date on which this Order is electronically

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docketed, either (1) pay the $400 filing fee for civil cases, or (2) file a new motion to

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proceed in forma pauperis that addresses the Court’s above-mentioned concerns.

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IT IS SO ORDERED.
Dated: August 29, 2017

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17-CV-1676 JLS (JLB)