Pina v. Pina

• Court: District Court, S.D. California
• Decided: March 24, 2025
• Docket: 3:25-cv-00386
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARCELINA PINA, Case No.: 25-CV-386 JLS (SBC)

12 Plaintiff, ORDER (1) DENYING WITHOUT 13 v. PREJUDICE PLAINTIFF’S APPLICATION TO PROCEED IN 14 MARTINE PINA, DISTRICT COURT WITHOUT 15 Defendant. PREPAYING FEES OR COSTS AND (2) DISMISSING WITHOUT 16 PREJUDICE PLAINTIFF’S 17 COMPLAINT

18 (ECF No. 2) 19 20 21 22 23 24 Presently before the Court is Plaintiff Marcelina Pina’s Complaint (“Compl.,” ECF 25 No. 1) and Application to Proceed in District Court Without Prepaying Fees or Costs (“IFP 26 Appl.,” ECF No. 2). Having carefully considered Plaintiff’s Complaint, Application and 27 the applicable law, the Court DENIES WITHOUT PREJUDICE Plaintiff’s IFP 28 Application and DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint. 1 IN FORMA PAUPERIS APPLICATION 2 All parties instituting a civil action, suit, or proceeding in a district court of the 3 United States, other than a petition for writ of habeas corpus, must pay a filing fee of $405.1 4 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee 5 only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 6 § 1915(a)(1). 7 Section 1915(a)(1) provides: 8 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or 9 proceeding . . . without prepayment of fees or security therefor, 10 by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay 11 such fees or give security therefor. 12

13 As § 1915(a)(1) does not itself define what constitutes insufficient assets to warrant IFP 14 status, the determination of indigency falls within the district court’s discretion. See Cal. 15 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 1915 typically 16 requires the reviewing court to exercise its sound discretion in determining whether the 17 affiant has satisfied the statute’s requirement of indigency.”), reversed on other grounds 18 by 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient where 19 it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 20 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont 21 de Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely destitute to 22 obtain benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 23 1960). “Nevertheless, a plaintiff seeking IFP status must allege poverty ‘with some 24 particularity, definiteness[,] and certainty.’” Escobedo, 787 F.3d at 1234. 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. 28 Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted leave to proceed 1 The Court cannot find that Plaintiff has alleged with sufficient certainty that she 2 would be unable to afford the necessities of life should she be required to pay the requisite 3 filing fee. Plaintiff indicates that her monthly income consists exclusively of $2,500 in 4 child support, IFP Appl. at 1, but the Court finds this assertion directly contradicted by the 5 Complaint, which alleges that, “to this day not even a dollar was and has been collected 6 from the outstanding debt” owed by the father of Plaintiff’s three children, Compl. at 5. It 7 is thus unclear if Plaintiff is actually receiving any income each month, and if so, how 8 much she is receiving. Plaintiff further indicates that she has monthly expenses of $1,000 9 for food and $200 for utilities, but she left blank the space available to enter rent or 10 mortgage payments. IFP Appl. at 4. Despite the above entries, Plaintiff lists $0 as her total 11 monthly income and $0 as her total monthly expenses, id. at 2, 5, and she leaves blank 12 numerous other questions, all of which require a response. 13 “Without further explanation, ‘[i]t is not apparent how Plaintiff is obtaining the 14 necessities of life, and in turn whether this source of funds—if it exists—can cover the 15 required filing fee in this action.’” Turner v. City of San Diego, 16 No. 23-CV-29 TWR (NLS), 2023 WL 163492, at *1 (S.D. Cal. Jan. 10, 2023) (quoting 17 Herta v. Wiblemo, No. 22-CV-1679-BAS-BGS, 2022 WL 17573923, at *2 (S.D. Cal. 18 Nov. 7, 2022)). Given the internal and external inconsistencies presented by Plaintiff’s 19 IFP Application—and the lack of detail Plaintiff provides regarding her income and 20 expenses—the Court finds that Plaintiff has not satisfied her burden to show that her 21 financial condition warrants lifting the filing fee requirement. Accordingly, the Court 22 DENIES Plaintiff’s IFP Application. Said denial, however, is WITHOUT PREJUDICE 23 to Plaintiff refiling an IFP application that cures the above-noted deficiencies. If Plaintiff 24 wishes to refile her IFP application, she “should note that the IFP application specifically 25 instructs applicants not to leave any blanks, and to instead response [sic] ‘0,’ ‘none,’ or 26 ‘not applicable (N/A)’ as necessary.” Herta, 2022 WL 17573923, at *2. 27 / / / 28 / / / 1 CONCLUSION 2 In light of the foregoing, IT IS HEREBY ORDERED that: 3 1. Plaintiff's IFP Application (ECF No.2) is DENIED WITHOUT 4 || PREJUDICE; 5 2. Plaintiffs Complaint (ECF No. 1) is DISMISSED WITHOUT 6 || PREJUDICE for failure to prepay the filing fee mandated by 28 U.S.C. § 1914(a); and 7 3. Plaintiff is GRANTED an additional thirty (30) days from the date on which 8 ||this Order is electronically docketed to either (1) pay the entire $405 statutory and 9 || administrative filing fee, or (2) file a new IFP application alleging that she is unable to pay 10 |/the requisite fee. Should Plaintiff fail to either pay the filing fee or file a new IFP 11 || application, the Court will convert this dismissal of Plaintiff’s Complaint into dismissal 12 || of this civil action without prejudice. 13 IT IS SO ORDERED. 14 | Dated: March 24, 2025 peach Jt, oe waite 15 on. Janis L. Sammartino 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28