Herta v. Wiblemo

• Court: District Court, S.D. California
• Decided: November 7, 2022
• Docket: 3:22-cv-01679
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA

10 MARIA HERTA, Case No. 22-cv-1679-BAS-BGS 11 Plaintiff, ORDER DENYING WITHOUT 12 PREJUDICE PLAINTIFF’S v. APPLICATION TO PROCEED 13 IN FORMA PAUPERIS CRAIG WIBLEMO, CHRISSY 14 HUNSAKER, SHARNITA MOORE, (ECF No. 2) 15 Defendants. 16 17 On October 27, 2022, Plaintiff Maria Herta, proceeding pro se, commenced this 18 action. (ECF No. 1.) The same day, Plaintiff also filed an application seeking leave to 19 proceed without prepaying fees or costs, also known as proceeding in forma pauperis 20 (“IFP”). (ECF No. 2.) For the reasons discussed below, the Court DENIES WITHOUT 21 PREJUDICE Plaintiff’s application to proceed IFP. 22 Under 28 U.S.C. § 1915, an indigent litigant who is unable to pay the fees required 23 to commence a legal action may petition a court to proceed without making such 24 prepayment. The determination of indigency falls within the district court’s discretion. Cal. 25 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding that “Section 1915 26 typically requires the reviewing court to exercise its sound discretion in determining 27 whether the affiant has satisfied the statute’s requirement of indigency”), rev’d on other grounds, 506 U.S. 194 (1993). 1 It is well-settled that a party need not be completely destitute to proceed in forma 2 pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To 3 satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 4 which states that one cannot because of his poverty pay or give security for costs . . . and 5 still be able to provide himself and dependents with the necessities of life.” Id. at 339 6 (internal quotations omitted). At the same time, however, “the same even-handed care must 7 be employed to assure that federal funds are not squandered to underwrite, at public 8 expense, . . . the remonstrances of a suitor who is financially able, in whole or in material 9 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 10 District courts, therefore, tend to reject IFP applications where the applicant can pay 11 the filing fee with acceptable sacrifice to other expenses. See, e.g., Olivares v. Marshall, 12 59 F.3d 109 (9th Cir. 1995) (finding that a district court did not abuse its discretion in 13 requiring a partial fee payment from a prisoner who had a $14.61 monthly salary and who 14 received $110 per month from family). The facts as to the affiant’s poverty must be stated 15 “with some particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d 16 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 17 1960)). 18 Having read and considered Plaintiff’s application, the Court finds that Plaintiff fails 19 to meet the requirements for IFP status under 28 U.S.C. § 1915. Regarding her income, she 20 states only “yes” under “Self-employment” and “n/a” under “Employment” and “Child 21 support.” (ECF No. 2 at 1.) All other fields are left blank, and Plaintiff lists her total 22 monthly income as “$0.00.” (Id. 1–2.) Similarly, the employment history and cash holdings 23 sections are blank, and Plaintiffs lists only a “Mazda 5/2006” under assets without 24 estimating its value. (Id. at 2–3.) Under expenses, Plaintiff marks “x” next to the food, 25 clothing, laundry and dry-cleaning, transportation, and recreation fields but again fails to 26 estimate a dollar value for those expenses. (Id. at 4–5.) Despite these apparent expenses, 27 Plaintiff lists total monthly expenses as “$0.00.” (Id.) Finally, Plaintiff checks the “Yes” box in question 9, which asks, “Do you expect any major changes to your monthly income 1 expenses or in your assets or liabilities during the next 12 months?” (/d. at 5.) The form 2 states, “If yes, describe on an attached sheet,” but Plaintiff fails to attach a description. (/d.) 3 It is not apparent how Plaintiff is obtaining the necessities of life, and in turn whether 4 source of funds—if it exists—can cover the required filing fee in this action. The Court 5 ||can draw no conclusions from the incomplete and self-contradictory IFP application. Thus, 6 || the application does not indicate that requiring Plaintiff to pay the required $400 fee would 7 ||impair her ability to obtain the necessities of life. 8 In light of the foregoing, the Court DENIES Plaintiff’s application to proceed IFP 9 || WITHOUT PREJUDICE. (ECF No. 2.) To proceed IFP, Plaintiff must refile the IFP 10 ||application by November 21, 2022 with more specific information regarding the 11 || aforementioned sources of income and monthly expenses. Plaintiff should note that the IFP 12 || application specifically instructs applicants not to leave any blanks, and to instead response 13 “none,” or “not applicable (N/A)” as necessary. 14 IT IS SO ORDERED. 15 ) 16 || DATED: November 7, 2022 ( yi A (Hysha A 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28