Vimegnon v. Oregon Health and Science University

Filing 5

OPINION AND ORDER - Plaintiff's IFP application 4 is denied. Plaintiff must either pay the filing fee or file an amended IFP application within fourteen (14) days of the date of this Order. If Plaintiff files an amended application, he must detail the expenses as requested in Paragraph 8. Further, he must explain why Plaintiff's mother-in-law qualifies as a dependent as opposed to being the recipient of Plaintiff's wife's generosity. Finally, if Plaintiff does not pay the filing fee or file an amended application by the deadline indicated here, the action will be dismissed without prejudice. Signed on 1/9/2017 by Judge Marco A. Hernandez. (Copy of this Opinion and Order mailed to plaintiff on 1/9/2017) (pg). Modified on 1/10/2017 (pg).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
YVES H. VIMEGNON,

3:16-cv-02304-HZ

Plaintiff,
v.
OREGON HEALTH & SCIENCES
UNIVERSITY,

OPINION AND ORDER

Defendant.
HERNANDEZ, District Judge:
Plaintiff Yves Vimegnon, appearing pro se, brings this employment discrimination action
against his former employer, Defendant Oregon Health & Sciences University. Presently,
Plaintiff seeks to proceed in formal pauperis (IFP) under 28 U.S.C. § 1915. I deny the motion.
A party seeking to bring a civil action in federal court must pay a filing fee of 400. See
28 U.S.C. § 1914 (providing statutory fee of $350); U.S. Dist. Ct. Sch. of Fees (showing $400
civil filing fee as of January 1, 2017) (available at
https://www.ord.uscourts.gov/index.php/filing/fees) . A civil action may proceed without the
1 - OPINION & ORDER

prepayment of a filing fee only if the court grants an application to proceed in forma pauperis.
28 U.S.C. § 1915(a).
The court has discretion to decide whether to grant in forma pauperis status. See Calif.
Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) ("Section 1915 typically requires
the reviewing court to exercise its sound discretion in determining whether the affiant has
satisfied the statute's requirement of indigency"), rev'd on other grounds, 506 U.S. 194 (1993);
see also Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (review of denial of in
forma pauperis application is for abuse of discretion).
A litigant must show that he or she "cannot because of his poverty pay or give security for
the costs and still be able to provide himself and dependents with the necessities of life." Adkins
v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Litigants are not required to
contribute their "last dollar" or "make themselves and their dependents wholly destitute." Id.
But, "a plaintiff seeking IFP status must allege poverty with some particularity, definiteness and
certainty." Escobedo, 787 F.3d at 1234 (internal quotation marks omitted).
In his IFP application, Plaintiff represents that he is currently unemployed, that his last
employment was in April 2015, and that he has no income. IFP App. ¶¶ 2, ECF 4. His spouse is
employed, earning $110,000 per year. Id. ¶ 3. He has access to his spouse's funds to pay the
filing fee. Id. However, he explains that because of his "situation," which I understand to mean
the loss of his job, the couple experiences financial hardship making it impossible for them to
afford the filing fee. Id. He describes himself and his wife's mother as his wife's dependents and
explains that after expenses, they are often left with only $200 "until the rest of the month." Id.
Plaintiff owns a Honda Accord valued at $23,000. Id. ¶ 7. He owns no other real estate,
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stocks, bonds, securities, other financial instruments, or other valuable property. Id. ¶ 6. His
wife pays for housing, transportation, utilities, and other regular monthly expenses, but Plaintiff
neglected to provide the amounts of any of these monthly expenses. Id. ¶ 8. In terms of debt, he
states that he owes $23,000 on an automobile loan, $18,000 in credit card debt, and $10,000 to a
patent lawyer. Id. ¶ 10. Plaintiff and his wife have joint cash, savings, or checking accounts. Id.
¶ 5. The amount in those accounts varies "up to $200 before end of month." Id.
If only Plaintiff's income and debts are considered, he qualifies for IFP because his
income is zero and he has no appreciable assets. But, in addition to considering an individual
IFP applicant's monthly income, federal courts have consistently considered "his or her other
financial resources, including resources that could be made available from the applicant's spouse,
or other family members." Helland v. St. Mary's Duluth Clinic Health Sys., No. 10–31, 2010
WL 502781, at *1 n.1 (D. Minn. Feb. 5, 2010); Behmlander v. Comm'r, No. 12–CV–14424,
2012 WL 5457466, at *2 (E.D. Mich. Oct, 16, 2012) (income of party's spouse "particularly
relevant"); see also Reynolds v. Crawford, No. 1:01–cv–877, 2009 WL 3908911, at *1 (S.D.
Ohio Nov.17, 2009) ("The case law also directs the courts to consider the income and assets of
the applicant's spouse in assessing an application to proceed in forma pauperis." ) (collecting
cases). In the Ninth Circuit, a court may consider the income of an IFP applicant's spouse if a
reasonable inquiry into the spouse's assets and income establishes that those assets and income
are actually available to the IFP applicant. Escobedo, 787 F.3d at 1236.
Plaintiff's wife's income indicates that IFP is not warranted for Plaintiff. While the court
does not apply the federal poverty guidelines as the sole basis to grant or deny in forma pauperis
status, they are one measure of poverty. A plaintiff with an income well above the applicable
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guideline, without substantial debts or expenses, may likely fail to establish an inability to pay
the filing fee. E.g., Lopez-Ruiz v. Tripler Army Med. Ctr., No. CV. 11-0066 JMS/BMK, 2011
WL 486952, at *1 (D. Haw. Feb. 4, 2011) (where plaintiff's income was well in excess of the
federal poverty guidelines, she had other assets, and even though she had some debts her monthly
income still exceeded her monthly expenses, court denied in forma pauperis application).
Currently, the 2016 federal poverty guideline for a family of two is $16,020.
https://aspe.hhs.gov/poverty-guidelines.1 Even if Plaintiff's mother-in-law qualifies as a
dependent, the 2016 federal poverty guideline for a family of three is $20,160. Plaintiff's wife's
income is more than five times the $20,160 level for three persons, and is just below seven times
the $16,020 level for two persons. The $400 filing fee is less than 0.4% of her gross annual
income and is less than 1% of half of her gross annual income. While Plaintiff has some debts
and the family has ongoing expenses, the application suggests that the family's monthly income
still exceeds monthly expenses. Overall, the application fails to establish that payment of the
filing fee would deprive Plaintiff's family of the necessities of life.
CONCLUSION
Plaintiff's IFP application [4] is denied. Plaintiff must either pay the filing fee or file an
amended IFP application within fourteen (14) days of the date of this Order. If Plaintiff files an
amended application, he must detail the expenses as requested in Paragraph 8. Further, he must
explain why Plaintiff's mother-in-law qualifies as a dependent as opposed to being the recipient
of Plaintiff's wife's generosity. Finally, if Plaintiff does not pay the filing fee or file an amended

1

The 2017 poverty guidelines are expected to be released approximately January 19,
2017. https://aspe.hhs.gov/poverty-guidelines.
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application by the deadline indicated here, the action will be dismissed without prejudice.
IT IS SO ORDERED.

Dated this

day of

Marco A. Hernandez
United States District Judge

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, 2017