Pacello v. Pacello

Filing 3

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)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Raymond Pacello, Jr.,

Case No.: 17cv1931-CAB-KSC
Plaintiff,

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v.

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ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS

Amy Jo Pacello,

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Defendant.

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On, September 22, 2017, Plaintiff Raymond Pacello (“Plaintiff”) filed a Notice of

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Removal, wherein he seeks to remove a state court dissolution proceeding (the “state

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action”). [Doc. No. 1.] Plaintiff also filed a request to proceed in forma pauperis

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(“IFP”). [Doc. No. 2.] For the following reasons, Plaintiff’s motion is DENIED.

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Generally, all parties instituting a civil action in this court must pay a filing fee.

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See 28 U.S.C. § 1914(a); CivLR 4.5(a). But, pursuant to 28 U.S.C. § 1915(a), the court

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may authorize the commencement, prosecution or defense of any suit without payment of

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fees if the plaintiff submits an affidavit, including a statement of all his or her assets,

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showing that he or she is unable to pay filing fees or costs. “An affidavit in support of an

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IFP application is sufficient where it alleges that the affiant cannot pay the court costs

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and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th

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Cir. 2015). “[A] plaintiff seeking IFP status must allege poverty with some particularity,
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definiteness and certainty.” Id. (internal quotation marks omitted). The granting or

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denial of leave to proceed in forma pauperis in civil cases is within the sound discretion

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of the district court. Venerable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations

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omitted).

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In his IFP application, Plaintiff states that he has a monthly income of $2,256.00

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per month. [Doc. No. 2 at 2.] He also states that he has $600 in cash. Id. Finally,

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Plaintiff states that his monthly expenses are $1,970.00. [Doc. No. 2 at 5.] Given that

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Plaintiff’s monthly income exceeds his monthly expenses by almost $300, the Court is

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not persuaded Plaintiff lacks the funds to pay the filing fee and “still afford the

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necessities of life.” Escobedo, 787 F.3d at 1234. Therefore, the Court DENIES

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Plaintiff’s application to proceed in forma pauperis. Further, the Court cautions Plaintiff

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that the right to remove a case from state to federal court is vested exclusively in the

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defendant in a case. 28 U.S.C. §1441(a). Here, Plaintiff is also the Plaintiff/Petitioner in

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the state court action. Moreover, if Plaintiff is attempting to remove the more recent

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TRO proceedings in the state court action, proceedings that are ancillary to an action

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pending in state court cannot be removed to federal court if the underlying claim is being

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litigated in state court. GE Betz, Inc. v. Zee Co., Inc., 718 F.3d 615, 623 (7th Cir. 2013).

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Plaintiff shall have until October 11, 2017, to pay the entire filing fee. If the filing

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fee is not paid by October 11, 2017, the Clerk of the Court shall CLOSE the case without

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further order from the Court.

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IT IS SO ORDERED.
Dated: September 29, 2017

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