Emert v. Schuck

• Court: District Court, S.D. California
• Decided: April 5, 2024
• Docket: 3:24-cv-00002
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Robert EMERT, Case No.: 24-cv-00002-AGS-AHG 4 ORDER DENYING WITHOUT Plaintiff, 5 PREJUDICE MOTION TO v. PROCEED IN FORMA 6 PAUPERIS (ECF 5) 7 Andrea SCHUCK, et al., 8 Defendants. 9 10 Plaintiff Robert Emert, suing for alleged civil-rights violations under 42 U.S.C. 11 § 1983, moves to proceed in forma pauperis. For the reasons below, that motion is denied. 12 DISCUSSION 13 Typically, parties instituting a civil action in a United States district court must pay 14 filing fees of $405.1 See 28 U.S.C. § 1914(a). But if granted the right to proceed in forma 15 pauperis, a plaintiff need not pay those fees. Rodriguez v. Cook, 169 F.3d 1176, 1177 16 (9th Cir. 1999). An application for IFP status is sufficient if it indicates “that the affiant 17 cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 18 787 F.3d 1226, 1234 (9th Cir. 2015). Yet an IFP application must “allege poverty with 19 some particularity, definiteness and certainty.” Id. (cleaned up). 20 Emert’s application states that his income—from all sources—is zero dollars, and 21 that he has zero dollars in cash. He says he owns a car valued at $2,500, but he has marked 22 “N/A” for total monthly expenses. While an income of zero dollars—even against no 23 monthly expenses—would generally qualify for IFP status, this filing does not allege 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional 26 administrative fee of $55. See 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, 27 District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The $55 administrative fee does not apply to persons granted leave to proceed without prepayment. Id. 28 1 ||Emert’s poverty with the required “particularity, definiteness and certainty.” Even if an 2 || applicant “is experiencing homelessness,” “‘an explanation must be provided.” Hankins v. 3 || Wisehart, No. CV-22-02083-PHX-SPL, 2023 WL 183200, at *2 (D. Ariz. Jan. 11, 2023), 4 appeal dismissed, No. 23-15046, 2023 WL 4532813 (9th Cir. Mar. 31, 2023). Without 5 ||more explanation, this Court “is left with questions that could go to the accuracy and 6 || completeness of the affidavit.” See Peter J. v. Kijakazi, No. 23-CV-02240-JLB, 2023 WL 7 ||9111249, at *2 (S.D. Cal. Dec. 8, 2023) (denying IFP motion in similar situation); see also 8 || Spitters v. Micelli, No. 21-CV-05138-TSH, 2021 WL 11586325, at *2 (N.D. Cal. Aug. 2, 9 2021) (same). Because Emert’s application stumbles at the outset, the Court does not reach 10 || the next step of screening his complaint. See 28 U.S.C. § 1915(e)(2)(B). 11 Accordingly, the IFP motion is DENIED without prejudice. By April 26, 2024, 12 ||Emert must either (1) file a renewed motion for leave to proceed in forma pauperis that 13 addresses the identified deficiencies or (2) pay the requisite filing fee. If Emert has done 14 ||neither by that date, the Clerk is directed to close this case. 15 Dated: April 5, 2024 16 = | f. 17 Andrew G. Schopler United States District Judge 18 19 20 21 22 23 24 25 26 27 28 2 on ew