Luis Alfredo Garibay Felix v. United States Department of Justice and Drug Enforcement Administration

Opinion

1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA 13 14 LUIS ALFREDO GARIBAY FELIX, Case No. 3:26-cv-01855-BAS-SBC

15 Plaintiff, ORDER DENYING PLAINTIFF’S 16 v. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 17 UNITED STATES DEPARTMENT OF (ECF No. 2) JUSTICE and DRUG ENFORCEMENT 18 ADMINISTRATION,

19 Defendants. 20

21 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay the 22 required fees or security to commence a legal action may petition the court to proceed 23 without making such payment. The determination of indigency falls within the district 24 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) 25 (holding that “Section 1915 typically requires the reviewing court to exercise its sound 26 discretion in determining whether the affiant has satisfied the statute’s requirement of 27 indigency”), rev’d on other grounds, 506 U.S. 194 (1993). It is well-settled that a party 28 need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 1 335 U.S. 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an 2 affidavit [of poverty] is sufficient which states that one cannot because of his poverty pay 3 or give security for costs . . . and still be able to provide himself and dependents with the 4 necessities of life.” Id. at 339. At the same time, however, “the same even-handed care 5 must be employed to assure that federal funds are not squandered to underwrite, at public 6 expense . . . the remonstrances of a suitor who is financially able, in whole or in material 7 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 8 District courts, therefore, tend to reject IFP applications where the applicant can pay 9 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey, 10 841 F. Supp. 316, 321 (N.D. Cal. 1994) (finding that the district court did not abuse its 11 discretion in requiring a partial fee payment from a prisoner who had a $14.61 monthly 12 salary and who received $110 per month from family), vacated in part on other grounds 13 by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). Moreover, “in forma pauperis status 14 may be acquired and lost during the course of litigation.” Wilson v. Dir. of Div. of Adult 15 Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing 16 Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. 17 Cal. June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma 18 pauperis should be required to pay his $120 filing fee out of a $900 settlement). Finally, 19 the facts as to the affiant’s poverty must be stated “with some particularity, definiteness, 20 and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 21 Here, Plaintiff Luis Alfredo Garibay Felix represents that for the past twelve months, 22 he has received $18,000 per month in income. (ECF No. 2.) Plaintiff also represents that 23 his total monthly expenses are $2,850 per month. (Id.) Even though Plaintiff represents 24 he is currently “look[i]ng for a job,” the fact that Plaintiff’s monthly salary for the past 25 twelve months far exceeds his monthly expenses is sufficient basis for the Court to deny 26 Plaintiff’s motion. (Id.) 27 Plaintiff’s motion is thus, DENIED WITHOUT PREJUDICE. (ECF No. 2.) If 28 Plaintiff wishes to file an amended IFP motion, he must do so by May 6, 2026. 1 || Alternatively, Plaintiff may also pay the filing fee. The Court warns Plaintiff that if he 2 || does not file an amended IFP motion by May 6, 2026, or pay the filing fee, the Court will 3 || direct the Clerk of Court to close the case. 4 IT IS SO ORDERED. 5 ~ 6 || DATED: April 21, 2026 (yatta Bahar te 7 H n. Cynthia Bashant, Chief Judge United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28