(PS) McDonald v. Department of Motor Vehicles

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MITCHEL MCDONALD, No.2:21-cv-1561 KJM DP PS 12 Plaintiff, ORDER 13 Vv. CALIFORNIA DEPARTMENT OF MOTOR 15 | VEHICLES INSACRAMENTO COUNTY, 16 Defendants. 17 18 19 On September 21, 2022, this court adopted the magistrate judge’s findings and 20 | recommendations and dismissed plaintiff McDonald’s complaint and request to proceed in forma 21 | pauperis (“IFP”). McDonald then filed a notice of appeal, ECF No. 15, and asks this court again 22 | to proceed IFP. ECF No. 19. This court construes movant’s motion as a request to proceed IFP 23 | on appeal, as dictated by Federal Rule of Appellate Procedure 24. Fed. R. App. P. 24. For 24 | reasons provided below, the court denies plaintiffs motion. 25 Under Rule 24(a)(1), “a party to a district-court action who desires to appeal in forma 26 | pauperis must file a motion in the district court.” Fed. R. App. P. 24(a)(1). The motion must be 27 | accompanied by an affidavit that “(A) shows in the detail prescribed by Form 4 of the Appendix

1 | of Forms the party's inability to pay or to give security for fees or costs; (B) claims an entitlement 2 | to redress; and (C) states the issues that the party intends to present on appeal.” Jd. 3 Under 28 U.S.C. § 1915, the IFP statute, the court may waive filing fees for a plaintiff 4 | who cannot afford the payment, provided the suit is not frivolous or malicious. See 28 U.S.C. 5 | § 1915(a); Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). The statute does not 6 | delineate when someone is unable to pay the fee, but the Supreme Court has made clear that one 7 | need not “be absolutely destitute to enjoy the benefit of the statute.” See Adkins v. DuPont de 8 | Nemours & Co., 335 U.S. 331, 339-40 (1948). Although the plaintiff seeking IFP status must 9 | allege indigence “with some particularity, definiteness and certainty,” United States v. McQuade, 10 | 647 F.2d 938, 940 (9th Cir. 1981) (citation and internal quotation marks omitted), a sworn 11 | statement that the plaintiff cannot pay court costs while still affording the necessities of life 12 | generally suffices, Adkins, 335 U.S. at 339. 13 Here, plaintiff has provided only a partially complete IFP application. Additionally, 14 | plaintiff gives this court no reason to reconsider its previous decision, finding plaintiff's 15 | complaint frivolous. ECF Nos. 9, 12. Accordingly, plaintiff's motion is DENIED without 16 | prejudice to renewing his request before the circuit court. 17 This order resolves ECF No. 19. 18 IT IS SO ORDERED. 19 DATED: November 29, 2022. [\ (] 20 l ti / { q_/ CHIEF NT] ED STATES DISTRICT JUDGE