Shteynberg v. Sammartino

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUDOLF SHTEYNBERG, Case No. 22-cv-00959-BAS-JLB

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 14 HON. JANIS L. SAMMARTINO, (ECF No. 4) AND DISMISSING CASE 15 Defendant. 16 17 Plaintiff Rudolf Shteynberg is proceeding pro se—without an attorney. He filed a 18 complaint on June 29, 2022 against the Honorable District Judge Janis Sammartino of the 19 Southern District of California. (Compl., ECF No. 1.) Plaintiff’s complaint seeks relief 20 from an order that Judge Sammartino issued in an unspecified case in which Plaintiff was 21 presumably a party. (Id. § III.) In particular, he requests the “appointment of either 22 counsel or judge in same ethnicity/background.” (Id.) Plaintiff also filed a motion for 23 leave to proceed in forma pauperis (“IFP”)—without prepaying court fees or costs. (Mot., 24 ECF No. 4.) 25 For the following reasons, the Court DENIES Plaintiffs’ motion to proceed IFP, 26 and DISMISSES THE CASE WITHOUT PREJUDICE. 27 28 1 I. MOTION FOR LEAVE TO PROCEED IFP 2 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay the 3 required fees or security to commence a legal action may petition the court to proceed 4 without making such payment. The determination of indigency falls within the district 5 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) 6 (holding that “Section 1915 typically requires the reviewing court to exercise its sound 7 discretion in determining whether the affiant has satisfied the statute’s requirement of 8 indigency”), rev’d on other grounds, 506 U.S. 194 (1993). 9 It is well-settled that a party need not be completely destitute to proceed IFP. Adkins 10 v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To satisfy the 11 requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states 12 that one cannot because of his poverty pay or give security for costs . . . and still be able 13 to provide himself and dependents with the necessities of life.” Id. at 339. At the same 14 time, however, “the same even-handed care must be employed to assure that federal funds 15 are not squandered to underwrite, at public expense . . . the remonstrances of a suitor who 16 is financially able, in whole or in material part, to pull his own oar.” Temple v. Ellerthorpe, 17 586 F. Supp. 848, 850 (D.R.I. 1984). 18 District courts, therefore, tend to reject IFP applications where the applicant can pay 19 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. 20 Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (finding that the district court did not 21 abuse its discretion in requiring a partial fee payment from a prisoner who had a $14.61 22 monthly salary and who received $110 per month from family), vacated in part on other 23 grounds by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). Moreover, “in forma 24 pauperis status may be acquired and lost during the course of litigation.” Wilson v. Dir. 25 of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 26 2009) (citing Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, 27 at *2 (N.D. Cal. June 29, 1995) (holding that a plaintiff who was initially permitted to 28 proceed in forma pauperis should be required to pay his $120 filing fee out of a $900 1 |}settlement). Further, the facts as to the affiant’s poverty must be stated “with some 2 || particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 3 Cir. 1981). 4 Having read and considered Plaintiff's application, the Court finds that Plaintiff has 5 met the requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff states that he is self- 6 ||employed but refuses to specify his cash income. (Mot. 4 1.) In addition to his 7 ||“unspecified” income, Plaintiff receives $427.00 per month in public assistance funds. 8 Plaintiff reports that he has “$427.00/month” in his checking account and estimates 9 ||his total monthly expenses at $500.00. (/d. § 4.) Plaintiff expects major changes to his 10 |}monthly income in the next 12 months but does not specify the nature of these changes. 11 || Given Plaintiffs failure to specify his monthly cash income from self-employment, actual 12 ||checking account balance, and anticipated changes in his finances; the Court lacks the 13 |/requisite information needed to determine whether Plaintiff qualifies for IFP status. See 14 || McQuade, 647 F.2d at 940. Therefore, the Court finds that Plaintiff does not satisfy the 15 ||requirements to proceed IFP. 16 In light of the foregoing, the Court DENIES WITHOUT PREJUDICE □□□□□□□□□□□ 17 ||application to proceed in forma pauperis (ECF No. 4) and DISMISSES WITHOUT 18 || PREJUDICE the Complaint. Pursuant to this order, Plaintiff has thirty days (until August 19 2022) to pay the filing fee required to maintain this action pursuant to 28 U.S.C. 20 1914, or file a renewed application to proceed IFP if appropriate. 21 IT IS SO ORDERED. 22 / yy 23 DATED: July 25, 2022 ( yi A A (Hiphan 6 24 United States District Judge 25 26 27 28