Banks v. Salgado et al

Filing 4

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis. The Court orders Plaintiff to reimburse the filing fee from any recovery obtained in this case, whether through settlement or trial. Signed by Judge Thomas J. Whelan on 3/14/2018. (jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DWIGHT BANKS,

Case No.: 18-cv-0415 W (AGS)
Plaintiff,

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v.

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ORDER GRANTING MOTION TO
PROCEED IFP [DOC. 2]

PEDRO SALGADO dba MARCY'S
MEXICAN FOOD, et al.,

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Defendants.

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On February 22, 2018, Plaintiff Dwight Banks filed a complaint against Defendant

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for violations of the American’s with Disabilities Act, among other claims. Along with

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

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I.

DISCUSSION

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

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

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other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court

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18-cv-0415 W (AGS)

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

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statute’s requirement of indigency.”).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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According to his declaration, Plaintiff receives $826 per month in disability, and has

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monthly expenses of $1,218. (IFP App. [Doc. 2] ¶¶ 1, 8.) Additionally, according to his
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18-cv-0415 W (AGS)

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declaration, Plaintiff does not have any assets. (Id. ¶ 4.) Therefore, Plaintiff’s IFP

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motion will be granted.

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II.

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

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IFP [Doc. 2]. However, the Court further ORDERS Plaintiff to reimburse the filing fee

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from any recovery obtained in this case, whether through settlement or trial.

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IT IS SO ORDERED.
Dated: March 14, 2018

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