1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BURK N. ASHFORD, Case No.: 3:23-cv-00340-RBM-JLB
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. PETITION FOR RECONSIDERATION OF MOTION 14 LEE MATTAR, et al., TO PROCEED IN FORMA 15 Defendants. PAUPERIS
16 [Doc. 4] 17 18 I. INTRODUCTION 19 On February 21, 2023, Plaintiff Burk N. Ashford (“Plaintiff”) filed a Petition for 20 Writ of Mandamus Review from California Supreme Court Denial (“Petition”). (Doc. 1.) 21 The caption of the Petition names as a Defendants “Lee Mattar aka Leroy Mattar, the 22 Mattar Family Trust et al, & dba Lee’s Automotive & Does 1-20...” (Id. at 1.1) However, 23 the Petition appears to be an attempt to appeal or challenge a decision by the California 24 Supreme Court regarding the timeliness of an appeal of a lower court’s denial of a motion 25 to strike an exhibit—an unpublished federal court decision. (See id. at 2–9.) Plaintiff’s 26 27 28 1 underlying issue in the state court proceeding appears to be related to an opposing party 2 submitting as an exhibit an unpublished federal court decision. (Doc. 1-2 at 9–10.)2 3 Plaintiff previously filed a Motion to Proceed In Forma Pauperis (“Initial IFP 4 Motion”). (Doc. 2.) As explained in the Court’s Order denying Plaintiff’s Initial IFP 5 Motion, the Initial IFP Motion indicated receipt of $ 1.24 a month in disability payments, 6 a total average monthly income of $10,239.00, and average monthly expenses totaling 7 $540.00. (Doc. 3 at 2 (citing Doc. 2 at 2).) The Order noted the Initial IFP Motion did not 8 identify the source of his average monthly income, except for the $1.24 monthly disability 9 payment. (Id. at 2.) The Court explained that without any further explanation, Plaintiff 10 was not entitled to proceed IFP because based on the information he provided, his average 11 monthly income exceeded his average monthly expenses by $ 9,699.00. (Id. at 3.) 12 However, the Court granted Plaintiff leave to file a renewed IFP motion that sufficiently 13 showed he was entitled to IFP status. (Id.) 14 Plaintiff has filed a Petition for Reconsideration of Motion to Proceed In Forma 15 Pauperis (“Renewed IFP Motion”) that, as explained below, the Court construes as a 16 renewed request to proceed IFP. (Doc. 4.) For the reasons discussed below, Plaintiff’s 17 Renewed IFP Motion is DENIED. 18 II. DISCUSSION 19 A. Legal Standard 20 As the Court explained in the prior Order, all parties instituting any civil action, suit 21 or proceeding in a district court of the United States, except an application for writ of 22 23
24 25 2 In determining whether Plaintiff has established he is financially unable to pay the filing fee, the Court has not specifically analyzed whether his request to proceed IFP could 26 additionally be denied because his claims are frivolous or without merit. See Minetti v. 27 Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (“A district court may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint 28 1 habeas corpus, must pay a filing fee of $402. See 28 U.S.C. § 1914(a). The action may 2 proceed despite a failure to prepay the entire filing fee only if leave to proceed IFP is 3 granted pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 4 (9th Cir. 2007). Under § 1915, a litigant who, because of indigency, is unable to pay the 5 required fees or security to commence a legal action may petition the court to proceed 6 without making such payment. 28 U.S.C. § 1915(a)(1). 7 “An affidavit in support of an IFP application is sufficient where it alleges that the 8 affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. 9 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). However, “the same even-handed care 10 must be employed to assure that federal funds are not squandered to underwrite, as public 11 expense, … the remonstrances of a suitor who is financially able, in whole or in material 12 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D. R.I. 1984)). 13 The facts of an affidavit of poverty must be stated “with some particularity, definiteness 14 and certainty.” Escobedo, 787 F.3d at 1234 (quoting United States v. McQuade, 647 F.2d 15 938, 940 (9th Cir. 1981)). The determination of indigency falls within the district court’s 16 discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on 17 other grounds, 506 U.S. 194 (1993). 18 B. Renewed IFP Motion 19 Plaintiff’s Renewed IFP Motion addresses the Court’s Order denying his Initial IFP 20 Motion. It indicates he “has no idea where it is conceived that he receives $ 1.24 per month 21 in disability payments or a total monthly income of $ 10,239.00” and “[t]here is obviously 22 an error in the records entry or the interpretation.” (Doc. 4 at 2.) Although this statement 23 does not explain why his Initial IFP Motion explicitly stated his “Total monthly income” 24 was “$ 10,239” (Doc. 2 at 2), when it apparently was not, the Court interprets this to mean 25
26 27 3 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial 28 1 Plaintiff erred in indicating his total monthly income was $ 10,239. To the extent Plaintiff 2 is asking the Court to reconsider the prior denial of IFP status, that request is denied 3 because IFP was properly denied based on the information actually provided by Plaintiff 4 in the Initial IFP Motion. However, given the Court granted Plaintiff leave to file a renewed 5 IFP motion and he has provided an updated application, the Court construes his Motion as 6 a renewed request to proceed IFP and considers whether he should be permitted to proceed 7 IFP. 8 The Renewed IFP Motion indicates Plaintiff receives $ 1,239 in total monthly 9 income from social security benefits. (Doc. 4 at 3–4.) He indicates his total monthly 10 expenses are either $ 583.00 or $ 588.00. (Doc. 4 at 6–7 (expenses listed on IFP 11 Application) Doc. 4 at 2 (expenses listed in Motion ($ 588).) Plaintiff states that he has 12 $203.00 in cash. (Id. at 4.) Plaintiff indicates he owns a 1996 Chevrolet with an unknown 13 value and claims the State of California owes him $1,100.00 relating to litigation. (Id. at 14 5.) Plaintiff is currently unemployed and does not expect any major changes to his monthly 15 income or expenses during the next twelve months. (Id. at 4, 7.) 16 The Court finds Plaintiff’s Renewed IFP Motion is insufficient to permit Plaintiff to 17 proceed IFP. See Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“To proceed in forma 18 pauperis is a privilege not a right”). The Court recognizes that Plaintiff’s income is not 19 high.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BURK N. ASHFORD, Case No.: 3:23-cv-00340-RBM-JLB
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. PETITION FOR RECONSIDERATION OF MOTION 14 LEE MATTAR, et al., TO PROCEED IN FORMA 15 Defendants. PAUPERIS
16 [Doc. 4] 17 18 I. INTRODUCTION 19 On February 21, 2023, Plaintiff Burk N. Ashford (“Plaintiff”) filed a Petition for 20 Writ of Mandamus Review from California Supreme Court Denial (“Petition”). (Doc. 1.) 21 The caption of the Petition names as a Defendants “Lee Mattar aka Leroy Mattar, the 22 Mattar Family Trust et al, & dba Lee’s Automotive & Does 1-20...” (Id. at 1.1) However, 23 the Petition appears to be an attempt to appeal or challenge a decision by the California 24 Supreme Court regarding the timeliness of an appeal of a lower court’s denial of a motion 25 to strike an exhibit—an unpublished federal court decision. (See id. at 2–9.) Plaintiff’s 26 27 28 1 underlying issue in the state court proceeding appears to be related to an opposing party 2 submitting as an exhibit an unpublished federal court decision. (Doc. 1-2 at 9–10.)2 3 Plaintiff previously filed a Motion to Proceed In Forma Pauperis (“Initial IFP 4 Motion”). (Doc. 2.) As explained in the Court’s Order denying Plaintiff’s Initial IFP 5 Motion, the Initial IFP Motion indicated receipt of $ 1.24 a month in disability payments, 6 a total average monthly income of $10,239.00, and average monthly expenses totaling 7 $540.00. (Doc. 3 at 2 (citing Doc. 2 at 2).) The Order noted the Initial IFP Motion did not 8 identify the source of his average monthly income, except for the $1.24 monthly disability 9 payment. (Id. at 2.) The Court explained that without any further explanation, Plaintiff 10 was not entitled to proceed IFP because based on the information he provided, his average 11 monthly income exceeded his average monthly expenses by $ 9,699.00. (Id. at 3.) 12 However, the Court granted Plaintiff leave to file a renewed IFP motion that sufficiently 13 showed he was entitled to IFP status. (Id.) 14 Plaintiff has filed a Petition for Reconsideration of Motion to Proceed In Forma 15 Pauperis (“Renewed IFP Motion”) that, as explained below, the Court construes as a 16 renewed request to proceed IFP. (Doc. 4.) For the reasons discussed below, Plaintiff’s 17 Renewed IFP Motion is DENIED. 18 II. DISCUSSION 19 A. Legal Standard 20 As the Court explained in the prior Order, all parties instituting any civil action, suit 21 or proceeding in a district court of the United States, except an application for writ of 22 23
24 25 2 In determining whether Plaintiff has established he is financially unable to pay the filing fee, the Court has not specifically analyzed whether his request to proceed IFP could 26 additionally be denied because his claims are frivolous or without merit. See Minetti v. 27 Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (“A district court may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint 28 1 habeas corpus, must pay a filing fee of $402. See 28 U.S.C. § 1914(a). The action may 2 proceed despite a failure to prepay the entire filing fee only if leave to proceed IFP is 3 granted pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 4 (9th Cir. 2007). Under § 1915, a litigant who, because of indigency, is unable to pay the 5 required fees or security to commence a legal action may petition the court to proceed 6 without making such payment. 28 U.S.C. § 1915(a)(1). 7 “An affidavit in support of an IFP application is sufficient where it alleges that the 8 affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. 9 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). However, “the same even-handed care 10 must be employed to assure that federal funds are not squandered to underwrite, as public 11 expense, … the remonstrances of a suitor who is financially able, in whole or in material 12 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D. R.I. 1984)). 13 The facts of an affidavit of poverty must be stated “with some particularity, definiteness 14 and certainty.” Escobedo, 787 F.3d at 1234 (quoting United States v. McQuade, 647 F.2d 15 938, 940 (9th Cir. 1981)). The determination of indigency falls within the district court’s 16 discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on 17 other grounds, 506 U.S. 194 (1993). 18 B. Renewed IFP Motion 19 Plaintiff’s Renewed IFP Motion addresses the Court’s Order denying his Initial IFP 20 Motion. It indicates he “has no idea where it is conceived that he receives $ 1.24 per month 21 in disability payments or a total monthly income of $ 10,239.00” and “[t]here is obviously 22 an error in the records entry or the interpretation.” (Doc. 4 at 2.) Although this statement 23 does not explain why his Initial IFP Motion explicitly stated his “Total monthly income” 24 was “$ 10,239” (Doc. 2 at 2), when it apparently was not, the Court interprets this to mean 25
26 27 3 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial 28 1 Plaintiff erred in indicating his total monthly income was $ 10,239. To the extent Plaintiff 2 is asking the Court to reconsider the prior denial of IFP status, that request is denied 3 because IFP was properly denied based on the information actually provided by Plaintiff 4 in the Initial IFP Motion. However, given the Court granted Plaintiff leave to file a renewed 5 IFP motion and he has provided an updated application, the Court construes his Motion as 6 a renewed request to proceed IFP and considers whether he should be permitted to proceed 7 IFP. 8 The Renewed IFP Motion indicates Plaintiff receives $ 1,239 in total monthly 9 income from social security benefits. (Doc. 4 at 3–4.) He indicates his total monthly 10 expenses are either $ 583.00 or $ 588.00. (Doc. 4 at 6–7 (expenses listed on IFP 11 Application) Doc. 4 at 2 (expenses listed in Motion ($ 588).) Plaintiff states that he has 12 $203.00 in cash. (Id. at 4.) Plaintiff indicates he owns a 1996 Chevrolet with an unknown 13 value and claims the State of California owes him $1,100.00 relating to litigation. (Id. at 14 5.) Plaintiff is currently unemployed and does not expect any major changes to his monthly 15 income or expenses during the next twelve months. (Id. at 4, 7.) 16 The Court finds Plaintiff’s Renewed IFP Motion is insufficient to permit Plaintiff to 17 proceed IFP. See Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“To proceed in forma 18 pauperis is a privilege not a right”). The Court recognizes that Plaintiff’s income is not 19 high. However, the information he provides in his Renewed IFP Motion reflects that his 20 monthly income exceeds his monthly expenses by at least $ 651. (Doc. 4 at 2–4, 6–7 21 ($ 1239 income and $ 588 expenses).) Assuming his own identification of his expenses is 22 accurate,4 he should be able to pay the filing fee without foregoing any necessities of life. 23 See Escobedo, 787 F.3d at 1234 (“An affidavit in support of an IFP application is sufficient 24 25 26 4 The Court notes that while the income Plaintiff listed in his Initial IFP Motion was 27 significantly different from the income reported in his Renewed IFP Motion, the expenses Plaintiff identified in his Initial IFP Motion and Renewed IFP Motion were very similar. 28 1 || where it alleges that the affiant cannot pay the court costs and still afford the necessities of 2 || life.”’). 3 I. CONCLUSION 4 Based on the foregoing, the Court DENIES Plaintiff's Renewed IFP Motion (Doc. 5 ||4). The case remains dismissed without prejudice. To have the case reopened, no later 6 ||than January 5, 2024, Plaintiff must pay the $402 filing fee required to commence this 7 || civil action. 8 IT IS SO ORDERED. 9 || Dated: November 22, 2023 Fe Le ; ? L □ 10 HON. RUTH BERMUDEZ MONTENEGRO 1] UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28