Williams v. Harry Heckel and the VFK Family Limited Partnership et al

Filing 3

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis. The United States Marshal shall serve a copy of the Complaint filed on January 26, 2018 and an accompanying summons upon Defendants as directed by Plaintiff on U.S. Marshal Form 285. All costs of service shall be advanced by the United States. Signed by Judge Thomas J. Whelan on 2/5/2018. (jao)

1
2
3
4
5
6
7
8
9
10

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12
13

CHARLOTTE WILLIAMS,

Case No.: 18-cv-0187 W (KSC)
Plaintiffs,

14
15

v.

16

18

HARRY HECKEL AND THE VFK
FAMILY LIMITED PARTNERSHIP, dba
VILLA MOROCCO APARTMENTS, et
al.,

19

ORDER GRANTING MOTION TO
PROCEED IFP [DOC. 2]

Defendants.

17

20
On January 26, 2018, Plaintiff Charlotte Williams (“Plaintiff”) filed a complaint

21
22

against Defendants for alleged housing discrimination. Along with the complaint,

23

Plaintiff filed a motion to proceed in forma pauperis (“IFP”) [Doc. 2].

24
25

I.

DISCUSSION

26

The determination of indigency falls within the district court’s discretion.

27

California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on

28

other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court
1
18-cv-0187 W (KSC)

1

to exercise its sound discretion in determining whether the affiant has satisfied the

2

statute’s requirement of indigency.”).

3

It is well-settled that a party need not be completely destitute to proceed in forma

4

pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To

5

satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient

6

which states that one cannot because of his poverty pay or give security for costs ... and

7

still be able to provide himself and dependents with the necessities of life.” Id. at 339.

8

At the same time, however, “the same even-handed care must be employed to assure that

9

federal funds are not squandered to underwrite, at public expense, ... the remonstrances of

10

a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple

11

v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).

12

District courts, therefore, tend to reject IFP applications where the applicant can

13

pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v.

14

Hennessey, 851 F.Supp. 316, (N.D.Cal. 1994), vacated in part on other grounds,

15

Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that district court did not

16

abuse discretion in requiring partial fee payment from prisoner with $14.61 monthly

17

salary and $110 per month from family); Allen v. Kelly, 1995 WL 396860 at *2 (N.D.

18

Cal. 1995) (Plaintiff initially permitted to proceed in forma pauperis, later required to pay

19

$120 filing fee out of $900 settlement proceeds); Ali v. Cuyler, 547 F.Supp. 129, 130

20

(E.D. Pa. 1982) (in forma pauperis application denied: “plaintiff possessed savings of

21

$450 and the magistrate correctly determined that this amount was more than sufficient to

22

allow the plaintiff to pay the filing fee in this action.”). Moreover, the facts as to the

23

affiant’s poverty must be stated “with some particularity, definiteness, and certainty.”

24

United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).

25

Having read and considered the papers submitted, the Court finds that based on the

26

current record, Plaintiff meets the requirements for IFP status under 28 U.S.C. § 1915.

27

According to her declaration, Plaintiff has a monthly income of $1,100, and monthly

28

expenses of $810. (IFP App. [Doc. 2] ¶¶ 1, 8.) Her monthly income, however, are based
2
18-cv-0187 W (KSC)

1

on what appear to be low estimates for such items as food, for which she only allocates

2

$100 monthly. (Id. ¶ 8.) Additionally, according to her declaration, Plaintiff does not

3

have any assets, and “struggles to pay bills every month” and has “no furniture in [her]

4

home” because it was destroyed by “water and termite damage.” (Id. ¶¶ 5, 11.)

5

Therefore, Plaintiff’s IFP motion will be granted.

6
7
8
9

II.

CONCLUSION & ORDER
For the reasons addressed above, the Court GRANTS Plaintiff’s motion to proceed

IFP [Doc. 2]. In light of the Court’s ruling on the IFP motion, the Court orders as

10

follows:

11

1.

The United States Marshal shall serve a copy of the Complaint filed on

12

January 26, 2018 and an accompanying summons upon Defendants as

13

directed by Plaintiff on U.S. Marshal Form 285. All costs of service shall be

14

advanced by the United States.

15
16
17
18

2.

Defendants shall respond to the Complaint within the time provided by the
applicable provisions of the Federal Rules of Civil Procedure.

IT IS SO ORDERED.
Dated: February 5, 2018

19
20
21
22
23
24
25
26
27
28
3
18-cv-0187 W (KSC)