Benjamin v. McAleenan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LORI ADAMS-BENJAMIN, Case No.: 19-CV-2029 JLS (AGS) 12 Plaintiff, ORDER DENYING WITHOUT 13 vs. PREJUDICE PLAINTIFF’S MOTION TO PROCEED IN FORMA 14 PAUPERIS 15 CHAD WOLF, Acting Secretary of the Department of Homeland Security (ECF No. 2) 16 Defendant. 17 18 Presently before the Court is Plaintiff Lori Adams-Benjamin’s Motion to Proceed in 19 Forma Pauperis (“IFP”) (“Mot.,” ECF No. 2). On October 22, 2019, Plaintiff, proceeding 20 pro se, filed a Complaint alleging employment discrimination and retaliation against 21 Defendant Kevin K. McAleenan,1 Acting Secretary of the Department of Homeland 22 Security. See generally ECF No. 1 (“Compl.”). 23 All parties instituting any civil action, suit, or proceeding in a district court of the 24 United States, except an application for a writ of habeas corpus, must pay filing and 25 / / / 26 27 1 Mr. McAleenan has since resigned. Chad Wolf assumed the office of Acting Secretary of the Department 28 1 administration fees totaling $400. 28 U.S.C. § 1914(a). A court may, however, in its 2 discretion, allow a plaintiff to proceed without paying these fees if the plaintiff seeks leave 3 to proceed IFP by submitting an affidavit demonstrating the fees impose financial hardship. 4 See 28 U.S.C. § 1915(a); Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). Although 5 the statute does not specify the qualifications for proceeding IFP, the plaintiff’s affidavit 6 must allege poverty with some particularity. Escobeda, 787 F.3d at 1234. Granting a 7 plaintiff leave to proceed IFP may be proper, for example, when the affidavit demonstrates 8 that paying court costs will result in a plaintiff’s inability to afford the “necessities of life.” 9 Id. The affidavit, however, need not demonstrate that the plaintiff is destitute. Id. 10 In Escobeda, for example, the filing fees constituted forty percent of the plaintiff’s 11 monthly income before factoring in her expenses. Id. at 1235. Taking into account the 12 plaintiff’s rent and debt payments, the filing fee would have required the entirety of two 13 months’ worth of her remaining funds, meaning that the plaintiff “would have to forgo 14 eating during those sixty days, to save up to pay the filing fee.” Id. Under those 15 circumstances, the Ninth Circuit determined that paying the filing fee would constitute a 16 significant financial hardship to the plaintiff. Id. Accordingly, the court reversed the 17 magistrate judge’s ruling denying the plaintiff IFP status. Id. at 1236. 18 Here, the Court concludes that Plaintiff has not met her burden of demonstrating that 19 payment of the filing fee would constitute an undue financial hardship. Plaintiff’s affidavit 20 indicates her gross monthly income is $4,014.30, Mot. at 1–2, and her monthly expenses 21 total $3,135.34. Id. at 5. The sum of her individually listed expenses, however, is 22 $5,480.45. Id. at 4–5. Due to the discrepancy in Plaintiff’s affidavit, the Court is unable 23 to determine whether Plaintiff can afford her monthly obligations in addition to the 24 requisite filing fee. Potentially, Plaintiff has a monthly surplus of $800, more than twice 25 26 27 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 1 amount of the filing fee. Plaintiff also indicates that she has $1,000 in cash and $1,000 2 her savings account. Jd. at 2. It is unclear why Plaintiff is unable to use these funds to 3 || pay the administrative filing fee. 4 Further, Plaintiff lists expenses beyond those necessary for life. For example, 5 || Plaintiff budgets $199 per month for cable and $217 per month for public storage. Jd. at 6 ||4. Plaintiff's discretionary spending therefore exceeds the cost of the filing fee. Because 7 appears Plaintiff has sufficient income to afford life’s necessities in addition to the filing 8 || fee, the Court DENIES WITHOUT PREJUDICE Plaintiff's Motion. 9 CONCLUSION 10 Good cause appearing, IT IS HEREBY ORDERED that: 1] 1. Plaintiff's Motion pursuant to 28 U.S.C. § 1915(a) (ECF No. 2) is DENIED 12 || WITHOUT PREJUDICE; 13 2. Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE for failure 14 || to prepay the filing fee mandated by 28 U.S.C. $1914(a); and 15 3. Plaintiff is GRANTED thirty (30) days from the date on which this Order is 16 electronically docketed to either (1) pay the entire $400 statutory and administrative filing 17 || fee, or (2) file a new IFP Motion alleging she is unable to pay the requisite fees. 18 IT IS SO ORDERED. 19 20 || Dated: January 28, 2020 . tt f te 21 on. Janis L. Sammartino 9 United States District Judge 23 24 25 26 27 28 3