(PS) Macallister v. CALPERS

• Court: District Court, E.D. California
• Decided: October 16, 2024
• Docket: 2:24-cv-02804
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DON MACALLISTER, No. 2:24-cv-02804-DAD-CKD (PS) 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA PUBLIC EMPLOYEES’ 15 RETIREMENT SYSTEM, 16 Defendant. 17 18 Plaintiff proceeds without counsel and seeks to proceed in forma pauperis. Plaintiff has 19 filed a civil complaint and an application to proceed in forma pauperis (“IFP”) on a Judicial 20 Council of California form used in state court. (ECF Nos. 1, 2.) 21 In order to commence a civil action, along with the complaint, a plaintiff must either pay 22 the $350.00 filing fee and the $55.00 administrative fee or file an application requesting leave to 23 proceed IFP. See 28 U.S.C. §§ 1914(a), 1915(a). The court may authorize the commencement of 24 an action without prepayment of fees by an individual who submits an affidavit evidencing an 25 inability to pay such fees. 28 U.S.C. § 1915(a). Generally, “[a]n affidavit in support of an IFP 26 application is sufficient where it alleges that the affiant cannot pay the court costs and still afford 27 the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing 28 Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331, 339 (1948)). Nevertheless, an IFP 1 | affidavit must “state the facts as to affiant’s poverty with some particularity, definiteness and 2 | certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 3 Plaintiff's affidavit does not adequately demonstrate plaintiff was unable to pay the court 4 || costs and still afford the necessities of life when plaintiff filed this suit. This court requires more 5 || information than what was provided on the Judicial Council of California form, and specifically, 6 || an itemized list of plaintiff's income and expenses. While § 1915(a) does not require a litigant to 7 || demonstrate “absolute destitution,” Adkins, 335 U.S. at 339, the applicant must nonetheless show 8 | inability to pay the fees. 28 U.S.C. § 1915(a). Plaintiff has not done so. 9 Because plaintiff does not make an adequate showing of indigency for in forma pauperis 10 || status, plaintiff will be granted 30 days in which to submit the filing fee and administrative fee to 11 || the Clerk of the Court. In the alternative, plaintiff may submit a renewed application to proceed 12 | IFP on the form used by this court.! Plaintiff is cautioned that failure to pay the court costs or file 13 || arenewed affidavit will result in a recommendation that the application to proceed in forma 14 || pauperis be denied and the present action be dismissed. 15 Accordingly, IT IS HEREBY ORDERED as follows: 16 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is denied without 17 prejudice to renewal. 18 2. Within thirty (30) days from the date of this order, plaintiff shall submit the 19 appropriate filing fee and administrative fee or a fully completed and signed affidavit 20 to proceed without prepayment of fees on the form used by this court. 21 | Dated: October 16, 2024 / □□ I / dle ae 22 CAROLYNK. DELANEY 23 UNITED STATES MAGISTRATE JUDGE 24 25 mace? ov2804:ifp 26 27 28 | | This form is located at https://www.caed.uscourts.gov/caednew/index.cfm/forms/civil.