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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VAN J. ROSS, Case No.: 17-CV-1676 JLS (JLB) Plaintiff, 12 13 14 ORDER (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND (2) DENYING MOTION TO APPOINT COUNSEL v. PADRES LP, et al., 15 Defendants. (ECF Nos. 2, 3) 16 17 18 19 20 21 Presently before the Court is Plaintiff Van J. Ross’s Motion to Proceed In Forma 22 Pauperis (“IFP”). (“IFP Mot.,” ECF No. 2.) Also before the Court is Plaintiff’s Motion to 23 Appoint Counsel. (“Counsel Mot.,” ECF No. 3.) 24 IFP MOTION 25 All parties instituting any civil action, suit, or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay 28 the entire fee only if he is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. 1 17-CV-1676 JLS (JLB) 1 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court 2 may authorize the commencement of an action without the prepayment of fees if the party 3 submits an affidavit, including a statement of assets, showing that he is unable to pay the 4 required filing fee. 28 U.S.C. § 1915(a). 5 In the present case, Plaintiff has submitted an affidavit indicating that he has received 6 an average monthly employment income of $2,100 over the past twelve months. (IFP Mot. 7 1.1) However, he notes that he will soon be leaving his current job, (id. at 6), and thus he 8 expects his average monthly employment income to be roughly $1,400 going forward, (id. 9 at 1). Plaintiff also notes that he will be receiving $732 for retirement benefits and $208 10 for unemployment benefits on a monthly basis. (Id. at 3.) This leads to a total average 11 monthly income of roughly $2,350. Plaintiff also has $200 in savings accounts, (id. at 3), 12 and has two cars valued at $2,400, (id. at 4). His spouse does not have any source of 13 income. (See generally id.) However, Plaintiff notes that their combined average monthly 14 expenses total well over $3,000. (See id. at 5–6.) This total is likely higher given that 15 Plaintiff lists “varies” for items such as medical and dental expenses, home maintenance, 16 and recreation/entertainment. (Id. at 5.) This at the very least suggests that Plaintiff either 17 has some other source of income or has not fully explained his financial situation to the 18 Court. Given the vast discrepancy between Plaintiff’s claimed monthly income and his 19 claimed monthly expenses, the Court is unable to determine whether Plaintiff’s affidavit is 20 credible and thus cannot accurately assess his ability to pay the $400 civil filing fee. 21 Accordingly, the Court DENIES Plaintiff’s Motion to Proceed IFP. 22 CONCLUSION 23 Based on the foregoing, the Court DENIES WITHOUT PREJUDICE Plaintiff’s 24 Motion to Proceed IFP (ECF No. 2). Consequently, the Court DENIES WITHOUT 25 PREJUDICE Plaintiff’s Motion to Appoint Counsel (ECF No. 3). To proceed with his 26 27 28 1 Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each page. 2 17-CV-1676 JLS (JLB) 1 case, Plaintiff may, within thirty days of the date on which this Order is electronically 2 docketed, either (1) pay the $400 filing fee for civil cases, or (2) file a new motion to 3 proceed in forma pauperis that addresses the Court’s above-mentioned concerns. 4 5 IT IS SO ORDERED. Dated: August 29, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 17-CV-1676 JLS (JLB)

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