Perez v. Mountain Empire Unified School District

• Court: District Court, S.D. California
• Decided: September 3, 2019
• Docket: 3:19-cv-01629
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 VALERIE PEREZ, PARENT ON Case No.: 19-CV-1629 W (MDD) BEHALF OF S.G., A MINOR, 14 ORDER GRANTING MOTION TO Petitioner, 15 PROCEED IFP [DOC. 2] v. 16 MOUNTAIN EMPIRE UNIFIED 17 SCHOOL DISTRICT, 18 Respondent. 19

20 On August 28, 2019, Petitioner Valerie Perez, parent on behalf of minor S.G., filed 21 a Petitioner for Approval of Settlement and Compromise of Minor’s Claims. Along with 22 the Petition, Petitioner filed a motion to proceed in forma pauperis (“IFP”) [Doc. 2]. 23

24 I. DISCUSSION 25 The determination of indigency falls within the district court’s discretion. 26 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on 27 other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court 28 1 to exercise its sound discretion in determining whether the affiant has satisfied the 2 statute’s requirement of indigency.”). 3 It is well-settled that a party need not be completely destitute to proceed in forma 4 pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To 5 satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 6 which states that one cannot because of his poverty pay or give security for costs ... and 7 still be able to provide himself and dependents with the necessities of life.” Id. at 339. 8 At the same time, however, “the same even-handed care must be employed to assure that 9 federal funds are not squandered to underwrite, at public expense, ... the remonstrances of 10 a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 11 v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984). 12 District courts, therefore, tend to reject IFP applications where the applicant can 13 pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. 14 Hennessey, 851 F.Supp. 316, (N.D.Cal. 1994), vacated in part on other grounds, 15 Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that district court did not 16 abuse discretion in requiring partial fee payment from prisoner with $14.61 monthly 17 salary and $110 per month from family); Allen v. Kelly, 1995 WL 396860 at *2 (N.D. 18 Cal. 1995) (Plaintiff initially permitted to proceed in forma pauperis, later required to pay 19 $120 filing fee out of $900 settlement proceeds); Ali v. Cuyler, 547 F.Supp. 129, 130 20 (E.D. Pa. 1982) (in forma pauperis application denied: “plaintiff possessed savings of 21 $450 and the magistrate correctly determined that this amount was more than sufficient to 22 allow the plaintiff to pay the filing fee in this action.”). Moreover, the facts as to the 23 affiant’s poverty must be stated “with some particularity, definiteness, and certainty.” 24 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 25 Having read and considered the papers submitted, the Court finds that based on the 26 current record, Petitioner meets the requirements for IFP status under 28 U.S.C. § 1915. 27 According to her declaration, as a result of being diagnosed with MS, Petitioner has been 28 on medical leave since approximately July 2019 and, therefore, does not have any 1 |j/income. (/FP App. [Doc. 2] F§ 1, 2, 9.) Before her diagnosis, Petitioner earned a gross 2 ||monthly income of $539. (/d. 42.) Petitioner’s sole asset is a 2002 Daewoo automobile. 3 45.) Petitioner also does not have any savings. (/d. § 4.) In contrast, Petitioner’s 4 ||monthly expenses total approximately $1,843, and she has three dependent children. (/d. 5 ||9§ 7, 8.) Therefore, Petitioner’s IFP motion will be granted. 6 7 CONCLUSION & ORDER 8 For the reasons addressed above, the Court GRANTS Petitioner’s motion to 9 || proceed IFP [Doc. 2]. 10 IT IS SO ORDERED. 11 ||Dated: September 3, 2019 \ I pe lnLor 13 Hn. 7 omas J. Whelan 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28