1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA
10 MICHAEL JAMES LINGENFELTER, Case No. 23-cv-0775-BAS-KSC 11 Plaintiff, ORDER: 12 v. 1. GRANTING MOTION FOR 13 BANK OF ENGLAND, LEAVE TO PROCEED IN 14 FORMA PAUPERIS (ECF NO. 3); Defendant.
15 2. DENYING PLAINTIFF LEAVE 16 TO FILE ELECTRONICALLY (ECF NO. 5); AND 17
18 3. TO SHOW CAUSE WITH RESPECT TO FRIVOLOUSNESS 19
20 21 Plaintiff Michael James Lingenfelter, proceeding pro se, files this action against his 22 former employer, Defendant Bank of England. Plaintiff alleges (1) wrongful termination; 23 (2) workplace harassment; (3) mental, verbal, and physical abuse/bullying, (4) retaliation, 24 (5) false claims, slander, defamation, and libel, (6) hostile workplace environment, and 25 (7) interference with prospective economic relations. (ECF No. 1.) Plaintiff also files an 26 application seeking leave to proceed without prepaying fees or costs, also known as 27 proceeding in forma pauperis (“IFP”), (IFP Mot., ECF No. 3) and a motion for leave to file electronically (ECF No. 5). For the reasons discussed below, the Court GRANTS 1 Plaintiff’s application to proceed IFP (ECF No. 3), DENIES Plaintiff’s motion for leave 2 to file electronically (ECF No. 5), and ORDERS Plaintiff to show cause as to why this 3 case should not be dismissed as frivolous. 4 I. APPLICATION FOR LEAVE TO PROCEED IFP 5 Under 28 U.S.C. § 1915, an indigent litigant who is unable to pay the fees required 6 to commence a legal action may petition a court to proceed without making such 7 prepayment. The determination of indigency falls within the district court’s discretion. Cal. 8 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding that “Section 1915 9 typically requires the reviewing court to exercise its sound discretion in determining 10 whether the affiant has satisfied the statute’s requirement of indigency”), rev’d on other 11 grounds, 506 U.S. 194 (1993). 12 It is well-settled that a party need not be completely destitute to proceed in forma 13 pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To 14 satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 15 which states that one cannot because of his poverty pay or give security for costs . . . and 16 still be able to provide himself and dependents with the necessities of life.” Id. at 339 17 (internal quotations omitted). At the same time, however, “the same even-handed care must 18 be employed to assure that federal funds are not squandered to underwrite, at public 19 expense, . . . the remonstrances of a suitor who is financially able, in whole or in material 20 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 21 District courts, therefore, tend to reject IFP applications where the applicant can pay 22 the filing fee with acceptable sacrifice to other expenses. See, e.g., Olivares v. Marshall, 23 59 F.3d 109 (9th Cir. 1995) (finding that a district court did not abuse its discretion in 24 requiring a partial fee payment from a prisoner who had a $14.61 monthly salary and who 25 received $110 per month from family). The facts as to the affiant’s poverty must be stated 26 “with some particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d 27 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). 1 Having read and considered Plaintiff’s application, the Court finds that he meets the 2 requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff has no income other than “loans 3 from friends” totaling $2,000 per month. (IFP Mot. ¶ 1.) He lists his monthly expenses as 4 $570. (Id. ¶¶ 1, 8.) He does not own an automobile, real estate, or any other significant 5 asset. (Id. ¶ 5.) His savings consists of $93.04 in cash. (Id. ¶ 4.) Plaintiff lists no expenses 6 for rent and states, “[B]asically I am homeless.” (Id. ¶¶ 8, 12.) Under these circumstances, 7 the Court finds that requiring Plaintiff to pay the court filing fees would impair his ability 8 to obtain the necessities of life. See Adkins, 335 U.S. at 339. Accordingly, the Court 9 GRANTS Plaintiff’s application to proceed IFP. 10 II. MOTION FOR LEAVE TO FILE ELECTRONICALLY 11 Before the Court is Plaintiff’s ex parte motion for permission to use the CM/ECF 12 filing system in accordance with ECF Administrative Policies and Procedures. (ECF No. 13 5.) A pro se party seeking leave to electronically file documents must demonstrate the 14 means to do so properly by stating their equipment and software capabilities in addition to 15 agreeing to follow all rules and policies in the CM/ECF Administrative Policies and 16 Procedures Manual. Plaintiff’s motion fails to do so. The Court therefore DENIES 17 WITHOUT PREJUDICE Plaintiff’s motion for leave to electronically file. Cf. In re 18 Cisse, No. 20-cv-1694-BAS-WVG, 2020 WL 6561426, at *1 (S.D. Cal. Nov. 9, 2020). If 19 Plaintiff elects to refile his motion, it must comport with the instructions in the Electronic 20 Case Filing Administrative Policies & Procedures Manual. This Manual as well as the 21 current technical specifications for CM/ECF can be found at the court’s official web site, 22 www.casd.uscourts.gov. 23 III. ORDER TO SHOW CAUSE 24 Under 28 U.S.C. § 1915(e)(2)(B)(i), the court must dismiss an action where the 25 plaintiff is proceeding IFP if the court determines that the action “is frivolous or 26 malicious.” An IFP complaint “is frivolous if it has ‘no arguable basis in fact or law.’” 27 O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (quoting Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984)). This standard grants the court “the unusual power to 1 ||}pierce the veil of the complaint’s factual allegations and dismiss those claims whose 2 || factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). 3 || Consequently, “a court is not bound, as it usually is when making a determination based 4 ||solely on the pleadings, to accept without question the truth of the plaintiffs allegations.” 5 || Denton v. Hernandez, 504 U.S. 25, 32 (1992). 6 An IFP complaint “that merely repeats pending or previously litigated claims” is 7 subject to dismissal as frivolous. See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th 8 1995) (quoting Bailey v. Johnson, 846 F.2d 1019, 1021 (Sth Cir. 1988)); see also 9 || Franklin v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA
10 MICHAEL JAMES LINGENFELTER, Case No. 23-cv-0775-BAS-KSC 11 Plaintiff, ORDER: 12 v. 1. GRANTING MOTION FOR 13 BANK OF ENGLAND, LEAVE TO PROCEED IN 14 FORMA PAUPERIS (ECF NO. 3); Defendant.
15 2. DENYING PLAINTIFF LEAVE 16 TO FILE ELECTRONICALLY (ECF NO. 5); AND 17
18 3. TO SHOW CAUSE WITH RESPECT TO FRIVOLOUSNESS 19
20 21 Plaintiff Michael James Lingenfelter, proceeding pro se, files this action against his 22 former employer, Defendant Bank of England. Plaintiff alleges (1) wrongful termination; 23 (2) workplace harassment; (3) mental, verbal, and physical abuse/bullying, (4) retaliation, 24 (5) false claims, slander, defamation, and libel, (6) hostile workplace environment, and 25 (7) interference with prospective economic relations. (ECF No. 1.) Plaintiff also files an 26 application seeking leave to proceed without prepaying fees or costs, also known as 27 proceeding in forma pauperis (“IFP”), (IFP Mot., ECF No. 3) and a motion for leave to file electronically (ECF No. 5). For the reasons discussed below, the Court GRANTS 1 Plaintiff’s application to proceed IFP (ECF No. 3), DENIES Plaintiff’s motion for leave 2 to file electronically (ECF No. 5), and ORDERS Plaintiff to show cause as to why this 3 case should not be dismissed as frivolous. 4 I. APPLICATION FOR LEAVE TO PROCEED IFP 5 Under 28 U.S.C. § 1915, an indigent litigant who is unable to pay the fees required 6 to commence a legal action may petition a court to proceed without making such 7 prepayment. The determination of indigency falls within the district court’s discretion. Cal. 8 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding that “Section 1915 9 typically requires the reviewing court to exercise its sound discretion in determining 10 whether the affiant has satisfied the statute’s requirement of indigency”), rev’d on other 11 grounds, 506 U.S. 194 (1993). 12 It is well-settled that a party need not be completely destitute to proceed in forma 13 pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To 14 satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 15 which states that one cannot because of his poverty pay or give security for costs . . . and 16 still be able to provide himself and dependents with the necessities of life.” Id. at 339 17 (internal quotations omitted). At the same time, however, “the same even-handed care must 18 be employed to assure that federal funds are not squandered to underwrite, at public 19 expense, . . . the remonstrances of a suitor who is financially able, in whole or in material 20 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 21 District courts, therefore, tend to reject IFP applications where the applicant can pay 22 the filing fee with acceptable sacrifice to other expenses. See, e.g., Olivares v. Marshall, 23 59 F.3d 109 (9th Cir. 1995) (finding that a district court did not abuse its discretion in 24 requiring a partial fee payment from a prisoner who had a $14.61 monthly salary and who 25 received $110 per month from family). The facts as to the affiant’s poverty must be stated 26 “with some particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d 27 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). 1 Having read and considered Plaintiff’s application, the Court finds that he meets the 2 requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff has no income other than “loans 3 from friends” totaling $2,000 per month. (IFP Mot. ¶ 1.) He lists his monthly expenses as 4 $570. (Id. ¶¶ 1, 8.) He does not own an automobile, real estate, or any other significant 5 asset. (Id. ¶ 5.) His savings consists of $93.04 in cash. (Id. ¶ 4.) Plaintiff lists no expenses 6 for rent and states, “[B]asically I am homeless.” (Id. ¶¶ 8, 12.) Under these circumstances, 7 the Court finds that requiring Plaintiff to pay the court filing fees would impair his ability 8 to obtain the necessities of life. See Adkins, 335 U.S. at 339. Accordingly, the Court 9 GRANTS Plaintiff’s application to proceed IFP. 10 II. MOTION FOR LEAVE TO FILE ELECTRONICALLY 11 Before the Court is Plaintiff’s ex parte motion for permission to use the CM/ECF 12 filing system in accordance with ECF Administrative Policies and Procedures. (ECF No. 13 5.) A pro se party seeking leave to electronically file documents must demonstrate the 14 means to do so properly by stating their equipment and software capabilities in addition to 15 agreeing to follow all rules and policies in the CM/ECF Administrative Policies and 16 Procedures Manual. Plaintiff’s motion fails to do so. The Court therefore DENIES 17 WITHOUT PREJUDICE Plaintiff’s motion for leave to electronically file. Cf. In re 18 Cisse, No. 20-cv-1694-BAS-WVG, 2020 WL 6561426, at *1 (S.D. Cal. Nov. 9, 2020). If 19 Plaintiff elects to refile his motion, it must comport with the instructions in the Electronic 20 Case Filing Administrative Policies & Procedures Manual. This Manual as well as the 21 current technical specifications for CM/ECF can be found at the court’s official web site, 22 www.casd.uscourts.gov. 23 III. ORDER TO SHOW CAUSE 24 Under 28 U.S.C. § 1915(e)(2)(B)(i), the court must dismiss an action where the 25 plaintiff is proceeding IFP if the court determines that the action “is frivolous or 26 malicious.” An IFP complaint “is frivolous if it has ‘no arguable basis in fact or law.’” 27 O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (quoting Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984)). This standard grants the court “the unusual power to 1 ||}pierce the veil of the complaint’s factual allegations and dismiss those claims whose 2 || factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). 3 || Consequently, “a court is not bound, as it usually is when making a determination based 4 ||solely on the pleadings, to accept without question the truth of the plaintiffs allegations.” 5 || Denton v. Hernandez, 504 U.S. 25, 32 (1992). 6 An IFP complaint “that merely repeats pending or previously litigated claims” is 7 subject to dismissal as frivolous. See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th 8 1995) (quoting Bailey v. Johnson, 846 F.2d 1019, 1021 (Sth Cir. 1988)); see also 9 || Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984) (affirming dismissal of □□□□□□□□□□ 10 ||claims as “frivolous or malicious” where the plaintiff's four previous actions concerning 11 same issue were dismissed for lack of subject matter jurisdiction). 12 In this case, Plaintiff appends to his Complaint a state court filing, in which Plaintiff 13 alleges the same causes of action against the same defendant. The Court is aware that 14 || Plaintiff is currently litigating these claims in state court. As a result, the Court ORDERS 15 || Plaintiff to show cause, on or before August 18, 2023, as to why the Court should not 16 dismiss this suit as frivolous under 28 U.S.C. § 1915(e)(2)(B). If Plaintiff can provide 17 || reasoning to justify such parallel litigation, then the Court will proceed to screening each 18 || of Plaintiff's claims. If Plaintiff fails to provide adequate justification, then the Court will 19 || dismiss Plaintiff's claims. 20 || IV. CONCLUSION 21 In light of the foregoing, the Court GRANTS Plaintiffs application to proceed IFP 22 || (ECF No. 3), DENIES Plaintiff's motion for leave to file electronically (ECF No. 5), and 23 || ORDERS Plaintiff to show cause, on or before August 18, 2023, as to why the Court 24 ||should not dismiss this suit as frivolous under 28 U.S.C. § 1915(e)(2)(B). 25 IT IS SO ORDERED. 26 / y+ 27 || DATED: July 28, 2023 ( ytd A (Bopha 6 28 United States District Judge