Knohl v. Galucci et al

Filing 7

ORDER Denying 5 and 6 Renewed Motions to Proceed in forma pauperis. No later than 3/30/2018, Knohl must either pay the filing fee, or file a renewed motion to proceed IFP. Signed by Judge Larry Alan Burns on 3/5/2018. (All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAY KNOHL,

Case No.: 18cv261-LAB (NLS)
Plaintiff,

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v.

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NEIL GALLUCCI, et al.,

ORDER DENYING RENEWED
MOTIONS TO PROCEED IN
FORMA PAUPERIS

Defendant.

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Plaintiff Jay Knohl filed his complaint along with a motion to proceed in forma

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pauperis (“IFP”). The Court denied his motion without prejudice, noting that it was

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incomplete. Among other things, the Court’s order pointed out that although the

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complaint made reference to his having a wife, his IFP application said he was

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single. The order also mentioned unexplained allegations concerning Knohl’s

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living in a house and having two dogs. In particular, the IFP motion did not list a

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house as one of Knohl’s assets, and did not include any rent in his expenses. If

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Knohl was being allowed to live in a house rent-free or if someone else was paying

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his rent, the order said, Knohl should have pointed that out. The IFP motion also

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mentioned Knohl owning two cars with unspecified value. Finally, Knohl said he

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and his wife owned two dogs, even though his IFP motion mentioned no expenses

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associated with that.
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18cv261-LAB (NLS)

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Knohl has now submitted two new IFP motions that are slightly different from

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each other. One is dated February 21, 2018 and the other is dated February 23.

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Ordinarily if a litigant filed a motion followed by a second, the Court might construe

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the second as an amended motion. But here, both motions were mailed to the

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Court in the same envelope, suggesting that Knohl is asking the Court to consider

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both of them together. The Court accepted these by discrepancy order, while

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rejecting an ex parte note urging the Court to take quick action.

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The two IFP motions do not clear up the problems the Court’s order identified
— if anything, their inconsistent representations create even more confusion.

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The February 21 motion (Docket no. 5) identifies Knohl as a “Single Person.”

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It says his two cars are not registered and have a combined value of $6500. It

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says he has $500 in a checking account. It says he spends $200 per month on

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food and $40 per month on dental expenses, and nothing on anything else, yet it

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gives his total monthly expenses as $0.

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The February 23 motion (Docket no. 6) says Knohl is “Unmarried” yet has a

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“Significant Other” who has Parkinson’s disease. It says he has $860 in a checking

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account. It says his two cars have a combined value of $7000, and says they are

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registered as non-operational. It says he has no monthly expenses at all, indicating

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that his significant other pays for utilities, home maintenance, and food.

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The two new IFP motions are incomplete and do not explain the earlier

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inconsistencies. And although they are dated only two days apart, they show

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unexplained differences in his assets. Taken together, they suggest that Knohl is

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living with a long-term girlfriend or domestic partner whom he earlier referred to as

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his wife, and that she is probably supporting him. The fact that she has Parkinson’s

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disease does not mean she has no income or assets, and Knohl has not said

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anything about that. But if she is paying for his expenses or giving him money or

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anything else of value, he should have mentioned it. And because it appears she

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is paying all his expenses, he has $500 per month in disposable income.
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18cv261-LAB (NLS)

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Furthermore, Knohl owns two cars that neither he nor his significant other

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drive or need. Together their value is at least $7000. He has not explained why

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he cannot sell one of the cars to raise money.

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The fact that the IFP form Knohl is using does not ask for particular

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information does not mean the Court is not entitled to ask him for more information,

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or to clear up inconsistencies or explain his answers. See Escondido v. Applebees,

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787 F.3d 1226, 1234 (9th Cir. 2015) (noting that magistrate judge should have

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investigated omissions in the record at IFP hearing); United States v. McQuade,

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647 F.2d 938, 940 (9th Cir. 1981) (explaining that it is “within the court’s discretion

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to make a factual inquiry” into a claim of poverty).

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An IFP affidavit is sufficient if it shows that the plaintiff cannot pay the filing

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fee and still afford the necessities of life. Escondido v. Applebees, 787 F.3d at

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1234 (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)).

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The IFP statute does not define “insufficient assets,” Escondido at 1234, but a

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plaintiff seeking to proceed IFP must allege poverty “with some particularity,

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definiteness and certainty.” McQuade, 647 F.2d at 940.

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The two motions to proceed IFP are DENIED. No later than March 30, 2018,

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Knohl must either pay the filing fee, or file a renewed motion to proceed IFP. If he

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files a renewed motion, it must be accompanied by a written explanation clearing

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up all the questions and inconsistencies identified in this order and in the Court’s

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earlier order denying the first IFP motion. If it does not, he can expect the IFP

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motion to be denied again.

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In setting the deadline at March 30, the Court intends for Knohl to have ample

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time to either raise the money for the filing fee, or gather all the information needed

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to address the inconsistencies this order and the earlier order have identified, and

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prepare a new motion. If Knohl needs more time, he should file an ex parte motion

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(without obtaining a hearing date) explaining why he needs more time.

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18cv261-LAB (NLS)

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If Knohl fails to either pay the filing fee or file a new IFP motion by March 30,
this action may be dismissed without further notice to Knohl.
IT IS SO ORDERED.
Dated: March 5, 2018

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Hon. Larry Alan Burns
United States District Judge

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18cv261-LAB (NLS)