Pacello v. Pacello
ORDER Denying 2 Motion to Proceed in Forma Pauperis. Signed by Judge Cathy Ann Bencivengo on 9/29/2017. (All non-registered users served via U.S. Mail Service)(mxn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Raymond Pacello, Jr.,
Case No.: 17cv1931-CAB-KSC
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
Amy Jo Pacello,
On, September 22, 2017, Plaintiff Raymond Pacello (“Plaintiff”) filed a Notice of
Removal, wherein he seeks to remove a state court dissolution proceeding (the “state
action”). [Doc. No. 1.] Plaintiff also filed a request to proceed in forma pauperis
(“IFP”). [Doc. No. 2.] For the following reasons, Plaintiff’s motion is DENIED.
Generally, all parties instituting a civil action in this court must pay a filing fee.
See 28 U.S.C. § 1914(a); CivLR 4.5(a). But, pursuant to 28 U.S.C. § 1915(a), the court
may authorize the commencement, prosecution or defense of any suit without payment of
fees if the plaintiff submits an affidavit, including a statement of all his or her assets,
showing that he or she is unable to pay filing fees or costs. “An affidavit in support of an
IFP application is sufficient where it alleges that the affiant cannot pay the court costs
and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th
Cir. 2015). “[A] plaintiff seeking IFP status must allege poverty with some particularity,
definiteness and certainty.” Id. (internal quotation marks omitted). The granting or
denial of leave to proceed in forma pauperis in civil cases is within the sound discretion
of the district court. Venerable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations
In his IFP application, Plaintiff states that he has a monthly income of $2,256.00
per month. [Doc. No. 2 at 2.] He also states that he has $600 in cash. Id. Finally,
Plaintiff states that his monthly expenses are $1,970.00. [Doc. No. 2 at 5.] Given that
Plaintiff’s monthly income exceeds his monthly expenses by almost $300, the Court is
not persuaded Plaintiff lacks the funds to pay the filing fee and “still afford the
necessities of life.” Escobedo, 787 F.3d at 1234. Therefore, the Court DENIES
Plaintiff’s application to proceed in forma pauperis. Further, the Court cautions Plaintiff
that the right to remove a case from state to federal court is vested exclusively in the
defendant in a case. 28 U.S.C. §1441(a). Here, Plaintiff is also the Plaintiff/Petitioner in
the state court action. Moreover, if Plaintiff is attempting to remove the more recent
TRO proceedings in the state court action, proceedings that are ancillary to an action
pending in state court cannot be removed to federal court if the underlying claim is being
litigated in state court. GE Betz, Inc. v. Zee Co., Inc., 718 F.3d 615, 623 (7th Cir. 2013).
Plaintiff shall have until October 11, 2017, to pay the entire filing fee. If the filing
fee is not paid by October 11, 2017, the Clerk of the Court shall CLOSE the case without
further order from the Court.
IT IS SO ORDERED.
Dated: September 29, 2017
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