1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 John Kamau, No. CV-25-02863-PHX-SHD
10 Plaintiff, ORDER
11 v.
12 Hamid R Ertifai, et al.,
13 Defendants. 14 15 Pending before the Court are Plaintiff John Kamau’s application to proceed in forma 16 pauperis (“IFP”), (Doc. 2), and emergency motion for a temporary restraining order 17 (“TRO”) and preliminary injunction (“PI”), (Doc. 7). For the reasons explained below, 18 Kamau’s application to proceed IFP is denied, Kamau’s Complaint is dismissed without 19 prejudice, and the motion for TRO and PI is dismissed as moot. 20 I. BACKGROUND 21 On August 11, 2025, Kamau filed this action. (Doc. 1.) 22 In the Complaint, Kamau alleges that the basis for the Court’s subject matter 23 jurisdiction is “FRCP 65”; he did not check the box for federal question or diversity 24 jurisdiction. (Id. at 3.) Kamau also does not allege any specific causes of action, instead 25 generally alleging that the defendants are money lenders who engaged in predatory 26 behavior and, when Kamau “fell in to hard times,” he was “forced to file bankruptcy.” (Id. 27 at 4.) Kamau requests a TRO and PI to “Order a stop to a Trustee Sale” scheduled for 28 August 19, 2025, which Kamau asserts is in violation of the automatic stay under the 1 Bankruptcy Code, 11 U.S.C. § 362. (Id. at 5.) 2 The same day, Kamau filed the IFP application and motion for TRO and PI. (Docs. 3 2, 7.) 4 II. IFP APPLICATION 5 Before turning to Kamau’s Complaint, his request to proceed IFP in this case must 6 first be addressed. “There is no formula set forth by statute, regulation, or case law to 7 determine when someone is poor enough to earn IFP status.” Escobedo v. Applebees, 787 8 F.3d 1226, 1235 (9th Cir. 2015). “An affidavit in support of an IFP application is sufficient 9 where it alleges that the affiant cannot pay the court costs and still afford the necessities of 10 life.” Id. at 1234 (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 11 (1948)). Although an applicant “need not be absolutely destitute to obtain benefits of the 12 in forma pauperis statute,” a “plaintiff seeking IFP status must allege poverty with some 13 particularity, definiteness and certainty.” Id. (quotation marks omitted). 14 Having reviewed the application to proceed IFP, (Doc. 2), the application is denied. 15 First, Kamau did not properly complete the application. The application instructed Kamau 16 to “not leave any blanks” and to “[c]omplete all questions in this application.” (Id. at 1.) 17 Kamau left most of the questions blank: he identified an average monthly income from the 18 past 12 months but did not include information for any income expected next month, and 19 he did not include his employment history or information for any financial accounts and 20 any amounts contained therein. (See id. at 1–2.) Moreover, although Kamau stated that he 21 “expect[ed] . . . major changes to [his] monthly income or expenses in [his] assets or 22 liabilities during the next 12 months,” he did not follow the application’s instructions to 23 “describe on an attached sheet” what these major changes would be. (Id. at 5.) Kamau’s 24 failure to properly complete the application does not permit a thorough analysis of whether 25 Kamau has enough income or assets, as compared to expenses, to warrant IFP status. See, 26 e.g., Burns v. Gore, 2025 WL 1908400, at *1–2 (S.D. Cal. 2025) (denying IFP application 27 in part because of the “lack of detail Plaintiff provide[d] regarding his income and 28 expenses,” including the plaintiff leaving several sections of the application blank). 1 Second, what little Kamau did complete in the application weighs against granting 2 IFP status. Kamau’s average monthly income over the past year amounts to $93,600. (See 3 Doc. 2 at 1–2.) Although Kamau disclosed that he has two daughters who rely on him for 4 support, he only disclosed the age of one of his daughters, who is 17, so it is unclear 5 whether both are minor dependents. (See id. at 3.) Kamau owns real property valued at 6 $700,000 and (presumably) $1.9 million, respectively. (See id.)1 He also owns a 2019 7 Cadillac Escalade valued at $45,000. (Id.) Although Kamau states that his monthly 8 expenses total $22,500, (id. at 5), it is unclear whether all these expenses constitute the 9 “necessities of life,” Escobedo, 787 F.3d at 1234. For example, although Kamau’s rent or 10 mortgage payment is listed as $13,000 per month, Kamau disclosed that he owns at least 11 two properties, suggesting that at least some of the listed $13,000 rent/mortgage expenses 12 pertain to a separate property than Kamau’s home. (See Doc. 2 at 3–4.) The same analysis 13 applies to the $5,000 in utilities expenses Kamau disclosed. (See id. at 4.) 14 Ultimately, although the disclosed monthly expenses are greater than the disclosed 15 monthly income, it does not appear that all of the disclosed monthly expenses fall within 16 the “necessities of life” that justify IFP status. See Valentine v. Granville Realty, Inc., 2025 17 WL 1839935, at *2 (E.D. Cal. 2025) (“Courts have consistently held that IFP status should 18 not be granted where an applicant can pay the filing fee with acceptable sacrifice to other 19 expenses.” (emphasis added)). The filing fee amounts to approximately 5% of Kamau’s 20 average monthly income over the past year. (See Doc. 2 at 2.) Kamau’s significant assets 21 and monthly income over the past year show that he is not indigent and thus can afford the 22 $405 filing fee. See, e.g., Tod M. v. Kijakazi, 2021 WL 6622288, at *1 (S.D. Cal. 2021) 23 (denying IFP application where the plaintiff indicated he had “assets including a home 24 valued at $250,000, a vehicle valued at $1,500, and a second vehicle valued at $1,200”). 25 Simply because a person lives above their means—as Kamau’s income compared to his 26 expenses implies, given the extremely high expenses for rent/mortgage and utilities—does 27 not mean that the person “cannot pay . . . court costs and still afford the necessities of life.” 28 1 In the box for the value of Kamau’s home, he put “$1.90.” (Doc. 2 at 3.) 1 See Escobedo, 787 F.3d at 1234; see also Berner v. Comm’r of Soc. Sec. Admin., 2023 WL 2 3246978, at *1 (D. Ariz. 2023) (noting that, although Escobedo could be read to hold that 3 if the applicant’s “rent and debt payments exceed her income, Plaintiff is eligible for in 4 forma pauperis status,” this reading would, “taken to its extreme . . . mean someone earning 5 millions of dollars per year would qualify for in forma pauperis status as long as they are 6 spending more than they earn”); Thistle v. Arkansas, 2022 WL 867009, at *2 (S.D. Cal. 7 2022) (denying IFP application where the plaintiff’s monthly income was $4,620.00 and, 8 “[a]lthough Plaintiff . . . elected to pay a substantial portion of his income toward a monthly 9 mortgage payment, given [his] level of income, it appear[ed] he [was] financially able to 10 pay the Court costs”). 11 As the court in Berner reasoned, there is nothing to indicate that Kamau cannot pay 12 the filing fee “without forgoing eating like the plaintiff in Escobedo.” See 2023 WL 13 3246978, at *2. Kamau has not established his poverty with certainty, Escobedo, 787 F.3d 14 at 1234, and the IFP application is thus denied. 15 III. COMPLAINT AND MOTION FOR TRO/PI 16 Although Kamau’s IFP application is denied for the reasons explained above, he 17 will not be given the ability to pay the filing fee to allow this action to proceed because his 18 Complaint is dismissed. 19 “Federal courts are courts of limited jurisdiction.” United States v.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 John Kamau, No. CV-25-02863-PHX-SHD
10 Plaintiff, ORDER
11 v.
12 Hamid R Ertifai, et al.,
13 Defendants. 14 15 Pending before the Court are Plaintiff John Kamau’s application to proceed in forma 16 pauperis (“IFP”), (Doc. 2), and emergency motion for a temporary restraining order 17 (“TRO”) and preliminary injunction (“PI”), (Doc. 7). For the reasons explained below, 18 Kamau’s application to proceed IFP is denied, Kamau’s Complaint is dismissed without 19 prejudice, and the motion for TRO and PI is dismissed as moot. 20 I. BACKGROUND 21 On August 11, 2025, Kamau filed this action. (Doc. 1.) 22 In the Complaint, Kamau alleges that the basis for the Court’s subject matter 23 jurisdiction is “FRCP 65”; he did not check the box for federal question or diversity 24 jurisdiction. (Id. at 3.) Kamau also does not allege any specific causes of action, instead 25 generally alleging that the defendants are money lenders who engaged in predatory 26 behavior and, when Kamau “fell in to hard times,” he was “forced to file bankruptcy.” (Id. 27 at 4.) Kamau requests a TRO and PI to “Order a stop to a Trustee Sale” scheduled for 28 August 19, 2025, which Kamau asserts is in violation of the automatic stay under the 1 Bankruptcy Code, 11 U.S.C. § 362. (Id. at 5.) 2 The same day, Kamau filed the IFP application and motion for TRO and PI. (Docs. 3 2, 7.) 4 II. IFP APPLICATION 5 Before turning to Kamau’s Complaint, his request to proceed IFP in this case must 6 first be addressed. “There is no formula set forth by statute, regulation, or case law to 7 determine when someone is poor enough to earn IFP status.” Escobedo v. Applebees, 787 8 F.3d 1226, 1235 (9th Cir. 2015). “An affidavit in support of an IFP application is sufficient 9 where it alleges that the affiant cannot pay the court costs and still afford the necessities of 10 life.” Id. at 1234 (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 11 (1948)). Although an applicant “need not be absolutely destitute to obtain benefits of the 12 in forma pauperis statute,” a “plaintiff seeking IFP status must allege poverty with some 13 particularity, definiteness and certainty.” Id. (quotation marks omitted). 14 Having reviewed the application to proceed IFP, (Doc. 2), the application is denied. 15 First, Kamau did not properly complete the application. The application instructed Kamau 16 to “not leave any blanks” and to “[c]omplete all questions in this application.” (Id. at 1.) 17 Kamau left most of the questions blank: he identified an average monthly income from the 18 past 12 months but did not include information for any income expected next month, and 19 he did not include his employment history or information for any financial accounts and 20 any amounts contained therein. (See id. at 1–2.) Moreover, although Kamau stated that he 21 “expect[ed] . . . major changes to [his] monthly income or expenses in [his] assets or 22 liabilities during the next 12 months,” he did not follow the application’s instructions to 23 “describe on an attached sheet” what these major changes would be. (Id. at 5.) Kamau’s 24 failure to properly complete the application does not permit a thorough analysis of whether 25 Kamau has enough income or assets, as compared to expenses, to warrant IFP status. See, 26 e.g., Burns v. Gore, 2025 WL 1908400, at *1–2 (S.D. Cal. 2025) (denying IFP application 27 in part because of the “lack of detail Plaintiff provide[d] regarding his income and 28 expenses,” including the plaintiff leaving several sections of the application blank). 1 Second, what little Kamau did complete in the application weighs against granting 2 IFP status. Kamau’s average monthly income over the past year amounts to $93,600. (See 3 Doc. 2 at 1–2.) Although Kamau disclosed that he has two daughters who rely on him for 4 support, he only disclosed the age of one of his daughters, who is 17, so it is unclear 5 whether both are minor dependents. (See id. at 3.) Kamau owns real property valued at 6 $700,000 and (presumably) $1.9 million, respectively. (See id.)1 He also owns a 2019 7 Cadillac Escalade valued at $45,000. (Id.) Although Kamau states that his monthly 8 expenses total $22,500, (id. at 5), it is unclear whether all these expenses constitute the 9 “necessities of life,” Escobedo, 787 F.3d at 1234. For example, although Kamau’s rent or 10 mortgage payment is listed as $13,000 per month, Kamau disclosed that he owns at least 11 two properties, suggesting that at least some of the listed $13,000 rent/mortgage expenses 12 pertain to a separate property than Kamau’s home. (See Doc. 2 at 3–4.) The same analysis 13 applies to the $5,000 in utilities expenses Kamau disclosed. (See id. at 4.) 14 Ultimately, although the disclosed monthly expenses are greater than the disclosed 15 monthly income, it does not appear that all of the disclosed monthly expenses fall within 16 the “necessities of life” that justify IFP status. See Valentine v. Granville Realty, Inc., 2025 17 WL 1839935, at *2 (E.D. Cal. 2025) (“Courts have consistently held that IFP status should 18 not be granted where an applicant can pay the filing fee with acceptable sacrifice to other 19 expenses.” (emphasis added)). The filing fee amounts to approximately 5% of Kamau’s 20 average monthly income over the past year. (See Doc. 2 at 2.) Kamau’s significant assets 21 and monthly income over the past year show that he is not indigent and thus can afford the 22 $405 filing fee. See, e.g., Tod M. v. Kijakazi, 2021 WL 6622288, at *1 (S.D. Cal. 2021) 23 (denying IFP application where the plaintiff indicated he had “assets including a home 24 valued at $250,000, a vehicle valued at $1,500, and a second vehicle valued at $1,200”). 25 Simply because a person lives above their means—as Kamau’s income compared to his 26 expenses implies, given the extremely high expenses for rent/mortgage and utilities—does 27 not mean that the person “cannot pay . . . court costs and still afford the necessities of life.” 28 1 In the box for the value of Kamau’s home, he put “$1.90.” (Doc. 2 at 3.) 1 See Escobedo, 787 F.3d at 1234; see also Berner v. Comm’r of Soc. Sec. Admin., 2023 WL 2 3246978, at *1 (D. Ariz. 2023) (noting that, although Escobedo could be read to hold that 3 if the applicant’s “rent and debt payments exceed her income, Plaintiff is eligible for in 4 forma pauperis status,” this reading would, “taken to its extreme . . . mean someone earning 5 millions of dollars per year would qualify for in forma pauperis status as long as they are 6 spending more than they earn”); Thistle v. Arkansas, 2022 WL 867009, at *2 (S.D. Cal. 7 2022) (denying IFP application where the plaintiff’s monthly income was $4,620.00 and, 8 “[a]lthough Plaintiff . . . elected to pay a substantial portion of his income toward a monthly 9 mortgage payment, given [his] level of income, it appear[ed] he [was] financially able to 10 pay the Court costs”). 11 As the court in Berner reasoned, there is nothing to indicate that Kamau cannot pay 12 the filing fee “without forgoing eating like the plaintiff in Escobedo.” See 2023 WL 13 3246978, at *2. Kamau has not established his poverty with certainty, Escobedo, 787 F.3d 14 at 1234, and the IFP application is thus denied. 15 III. COMPLAINT AND MOTION FOR TRO/PI 16 Although Kamau’s IFP application is denied for the reasons explained above, he 17 will not be given the ability to pay the filing fee to allow this action to proceed because his 18 Complaint is dismissed. 19 “Federal courts are courts of limited jurisdiction.” United States v. Marks, 530 F.3d 20 799, 810 (9th Cir. 2008). “A federal court is presumed to lack jurisdiction in a particular 21 case unless the contrary affirmatively appears,” Stock W., Inc. v. Confederated Tribes of 22 the Colvill Rsrv., 873 F.2d 1221, 1225 (9th Cir. 1989), and the “party seeking to invoke the 23 court’s jurisdiction bears the burden of establishing that jurisdiction exists,” Scott v. 24 Breeland, 792 F.2d 925, 927 (9th Cir. 1986). Furthermore, even if a party does not 25 challenge subject matter jurisdiction, federal courts have an “independent obligation to 26 examine their own jurisdiction.” United States v. Hays, 515 U.S. 737, 742 (1995). 27 Additionally, “[n]otwithstanding any filing fee, or any portion thereof, that may have been 28 paid,” courts must dismiss a case if it “fails to state a claim on which relief may be granted.” 1 28 U.S.C. § 1915(e)(2)(B)(ii). 2 The sole basis Kamau provides for this Court’s jurisdiction is Rule 65, but none of 3 the Federal Rules of Civil Procedure confer subject matter jurisdiction. Fed. R. Civ. P. 82 4 (“These rules do not extend . . . the jurisdiction of the district courts . . . .”); Kurth v. 5 Holston, 2012 WL 1900948, at *3 (D. Nev. 2012) (“Rule 65 is not an independent basis of 6 jurisdiction.”). Diversity jurisdiction does not exist because the Complaint discloses that 7 all parties are citizens of Arizona. (See Doc. 1 at 1, 3.) See 28 U.S.C. § 1332(a)(1) 8 (providing for jurisdiction over actions between “citizens of different States”). Kamau 9 does not identify any other basis for subject matter jurisdiction, or any statutory or 10 constitutional source for his claims, so the Complaint should ordinarily be dismissed. See 11 In re Hunter, 66 F.3d 1002, 1005 (9th Cir. 1995) (“For a federal court to have subject 12 matter jurisdiction to hear an independent action there must be some statutory or 13 constitutional basis for its jurisdiction.”); Cal. Diversified Promotions, Inc. v. Musick, 505 14 F.2d 278, 280 (9th Cir. 1974) (“It has long been held that a judge can dismiss sua sponte 15 for lack of jurisdiction.”). 16 Because Kamau is pro se, the Complaint must be liberally construed in determining 17 whether subject matter jurisdiction exists. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th 18 Cir. 2004), overruled on other grounds by Munoz v. Super. Ct. of L.A. Cnty., 91 F.4th 977, 19 980–81 (9th Cir. 2024). Construing Kamau’s Complaint liberally, Kamau asserts a claim 20 for violation of the automatic stay under 11 U.S.C. § 362. (Doc. 1 at 4.) As alleged in the 21 Complaint and further explained in the motion for TRO and PI, the parties are involved in 22 a bankruptcy case, with case number 25-03815-EPB. (See Doc. 1 at 4 (alleging the 23 “Plaintiff was forced to file bankruptcy”), 5 (requesting a stop to a trustee sale and arguing 24 the sale violates the automatic stay in the Bankruptcy Court); Doc. 7 at 2 (“Defendant and 25 their respective entities are parties in a bankruptcy case. 25-03815-EPB[.]”); id. (arguing 26 that, in “total violation[] of the Automatic stay . . . offered in the Bankruptcy case,” the 27 defendants “have [on] several occasions commenced sale of the residential property”).) 28 The crux of Kamau’s Complaint and motion for TRO and PI is thus that the 1 || defendants have violated or are violating the automatic stay in a pending bankruptcy action. 2|| The Court would have subject matter jurisdiction over such a claim. See Houck v. 3|| Substitute Tr. Servs., 791 F.3d 473, 481 (4th Cir. 2015). Because this District has referred 4|| all cases arising under the Bankruptcy Code to the Bankruptcy Court, however, Kamau || must raise any complaints about an alleged violation of the automatic stay before the 6|| Bankruptcy Court. See 28 U.S.C. § 157; Gen. Order 01-15 (referring “all cases under title 11 and all proceedings under title 11 or arising in or related to a case under title 11” to the 8 || Bankruptcy Court). Thus, even construing the Complaint as asserting a claim under the 9|| Bankruptcy Code, it is dismissed without prejudice to Kamau raising his claim before the || Bankruptcy Court. The motion for TRO and PI is therefore dismissed as moot. 11 Accordingly, 12 IT IS ORDERED that Kamau’s IFP application (Doc. 2) is denied. 13 IT IS FURTHER ORDERED that the Complaint is dismissed without prejudice □□ to Kamau raising any claims arising under the Bankruptcy Code to the Bankruptcy Court. 15 IT IS FURTHER ORDERED that the motion for TRO and PI (Doc. 7) is denied 16 || as moot. 17 IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment 18 || accordingly and close this case. 19 Dated this 14th day of August, 2025. 20 21 / 22 / 23 H le Sharad H. Desai 25 United States District Judge 26 27 28
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