Martin v. Mitchell et al

Filing 4

ORDER Denying 2 Motion to Proceed IFP. IT IS HEREBY ORDERED that:1. Plaintiff's Motion to Proceed IFP (ECF No. 2 ) is DENIED; 2. Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE for failure to prepay the filing fee mandated by 28 U.S.C. §1914(a); and 3. Plaintiff is GRANTED thirty (30) days from the date on which this Order is electronically docketed in which to reopen his case by paying the entire $400 statutory and administrative filing fee. If Plaintiff fails to pay the $400 filing fee in full, this action will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court. Signed by Judge Janis L. Sammartino on 1/7/2021. (All non-registered users served via U.S. Mail Service) (tcf)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN DAVID MARTIN, Case No.: 20-CV-2366 JLS (AGS) Plaintiff, 12 13 v. ORDER DENYING MOTION TO PROCEED IFP 14 MARLON D. MITCHELL, CHRISTINA PURTEE, MARGARITA SERRANO, and DOES 1-50 (ECF No. 2) 15 16 Defendants. 17 18 19 Plaintiff John David Martin has filed a Complaint alleging various Constitutional 20 rights and fair credit reporting violations against employees of the San Diego County 21 Department of Child Support Services (ECF No. 1). Plaintiff also filed a Motion for Leave 22 to Proceed in Forma Pauperis (“IFP”) (“Mot.,” ECF No. 2). For the reasons set forth 23 below, the Court DENIES Plaintiff’s Motion to Proceed IFP with leave to pay the filing 24 fee. 25 Under 28 U.S.C. § 1915(a), the Court may authorize a plaintiff to pursue a case 26 without payment of the filing fee. Whether an affiant has satisfied § 1915(a) falls within 27 “the reviewing court[’s] . . . sound discretion.” California Men’s Colony v. Rowland, 939 28 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 U.S. 194 (1993). A party need 1 20-CV-2366 JLS (AGS) 1 not “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 2 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff seeking IFP status must allege poverty 3 ‘with some particularity, definiteness, and certainty.’” Escobedo v. Applebees, 787 F.3d 4 1226, 1234 (9th Cir. 2015) (citing United States v. McQuade, 647 F.3d 938, 940 (9th Cir. 5 1981). “An affidavit in support of an IFP application is sufficient where it alleges that the 6 affiant cannot pay the court costs and still afford the necessities of life.” Id. “But, the same 7 even-handed care must be employed to assure that federal funds are not squandered to 8 underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who 9 is financially able, in whole or in part, to pull his own oar.” Temple v. Ellerthorp, 586 F. 10 Supp. 848, 850 (D. R.I. 1984). 11 In Escobeda, for example, the filing fees constituted 40% of the plaintiff’s monthly 12 income before factoring in her expenses. Escobedo, 787 F.3d at 1235. Taking into account 13 the plaintiff’s rent and debt payments, the filing fee would have required the entirety of 14 two months’ worth of her remaining funds, meaning that the plaintiff “would have to forgo 15 eating during those sixty days, to save up to pay the filing fee.” Id. Under those 16 circumstances, the Ninth Circuit determined that paying the filing fee would constitute a 17 significant financial hardship to the plaintiff. Id. Accordingly, the court reversed the 18 magistrate judge’s ruling denying the plaintiff IFP status. Id. at 1236. 19 Here, the Court concludes that Plaintiff has not met his burden of demonstrating that 20 payment of the filing fee would constitute an undue financial hardship. The IFP application 21 indicates that Plaintiff’s average monthly income is $3,100 of veteran’s disability 22 compensation. (Mot. at 2, 5.) Plaintiff indicates he has $54 in a checking account and 23 other assets valued at $147. (Id. at 2–3.) Plaintiff also states he is “awaiting a hearing in 24 [his] claim for disability (SSDI).” (Id. at 5.) Plaintiff states his total monthly debts and 25 obligations is $2,783. (Id. at 5.) The amount of money Plaintiff indicates he expects to 26 continue to receive on a monthly basis exceeds his monthly debts and obligations by more 27 than $300. Before factoring in expenses, the filing fee constitutes less than 13% of 28 Plaintiff’s monthly income. 2 20-CV-2366 JLS (AGS) 1 Based on this information, the Court finds Plaintiff has not shown he cannot pay the 2 court costs and still afford the necessities of life. The amount of money Plaintiff indicates 3 he expects to receive on a monthly basis exceeds his expected monthly debts and 4 obligations by enough that he could pay the one-time filing fee without impacting his 5 regular expenses. 6 CONCLUSION 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff’s Motion to Proceed IFP (ECF No. 2) is DENIED; 9 2. Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE for failure 10 11 to prepay the filing fee mandated by 28 U.S.C. §1914(a); and 3. Plaintiff is GRANTED thirty (30) days from the date on which this Order is 12 electronically docketed in which to reopen his case by paying the entire $400 statutory and 13 administrative filing fee. 14 If Plaintiff fails to pay the $400 filing fee in full, this action will remain dismissed 15 without prejudice pursuant to 28 U.S.C. § 1914(a), and without further Order of the Court. 16 17 IT IS SO ORDERED. Dated: January 7, 2021 18 19 20 21 22 23 24 25 26 27 28 3 20-CV-2366 JLS (AGS)

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