1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 || JOSEPH AMAZIAH TRENTON, Case No.: 21cv1993-JO-MSB Plaintt,| ORDER GRANTING PLAINTIFF'S 12 || v. MOTION FOR RECONSIDERATION 13 |} CARMAX, INC. et. al., 14 Defendants. 15 16 Plaintiff sought reconsideration of the Court’s Oder denying Plaintiff's application 17 || to proceed in forma pauperis. For the reasons stated below, the Court GRANTS □□□□□□□□□□□ 18 ||request for reconsideration [Dkt. 7] and GRANTS Plaintiff's motion to proceed in forma 19 || pauperis [Dkt. 2]. 20 I. BACKGROUND 21 Plaintiff, proceeding pro se, filed a complaint on November 26, 2021, alleging false 22 ||imprisonment and negligent failure to train employees and moved to proceed in forma 23 || pauperis (“IFP”). Dkts. 1, 2. On November 30, 2021, U.S. District Judge Bencivengo 24 || denied Plaintiff s IFP application without prejudice on the grounds that his affidavit lacked 25 credibility regarding income and lacked “particularity, definiteness and certainty[.]” See 26 || Dkt. 3; Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citation omitted). 27 ||The Court granted Plaintiff until January 7, 2022 to either pay the filing fee or file a 28 ||renewed application to proceed IFP. Dkt. 3. On December 20, 2021, Plaintiff filed an 1 objection to the Court’s denial of IFP and moved for a new judge. Dkt. 4. The Cour 2 || denied the motion on December 27, 2021, and reiterated the January 7, 2022 deadline. Dkt 4 On January 3, 2022, the case was transferred to the undersigned and all dates before 5 || Judge Bencivengo were vacated. Dkt. 6. On February 7, 2022, Plaintiff filed a motion tc 6 || file an interlocutory appeal of the Court’s November 30 Order. Dkt. 7. For the reason: 7 || described in the Court’s February 10, 2022 Order, the Court found that the interests o: 8 ||justice weighed in favor of construing Plaintiff's motion as a motion to reconsider the 9 || denial of his IFP application. Dkt. 8. 10 Il. DISCUSSION 11 The Court liberally construes pro se Plaintiff's request as one for reconsideratior 12 under Federal Rule of Civil Procedure 60(b)(1) based on Plaintiff’s allegations that the 13 ||Court misunderstood his indigent status. Dkt. 7 at 4, 9. Reconsideration under □□□□□□□ 14 || Rule of Civil Procedure 60(b) may be granted if there is (1) mistake, inadvertence, surprise 15 || or excusable neglect, (2) newly discovered evidence, (3) fraud, (4) a void judgment, (5) < 16 || satisfied judgment, or (6) any other reason justifying relief. Rule 60(b)(1) allows the Cour 17 ||to relieve a party from an order based on mistakes, including the Court’s substantive error: 18 law or fact. Fid. Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1024 (9th Cir 19 2004); Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999) 20 || To obtain relief under Rule 60(b)(1), Plaintiff “must show that the district court committec 21 specific error.” Straw v. Bowen, 866 F.2d 1167, 1172 (9th Cir. 1989). 22 23 || /// 24 /// 25 26 || /// 27 28 1 Plaintiff argues he made a sufficient showing of his inability to pay filing fees in his 2 || affidavit supporting his IFP application. Under Escobedo v. Applebees, “{a|n affidavit in 3 ||support of an IFP application is sufficient where it alleges that the affiant cannot pay the 4 ||court costs and still afford the necessities of life.” 787 F.3d 1226, 1234 (9th Cir. 2015). 5 ||Plaintiff filed an affidavit which alleged “with some particularity, definiteness and 6 || certainty” that his average income in the prior twelve months was $0, his bank account had 7 ||negative funds, and he could not afford the filing fees associated with this action. See Dkt. 8 Escobedo, 787 F.3d at 1234 (citation omitted). The Court finds that these statements are 9 || sufficient under 28 U.S.C. § 1915(a) and Escobedo.'! Moreover, the fact that Plaintiff has 10 || been gainfully employed for certain periods within the prior two years does not necessarily 11 |/conflict with Plaintiff's averments regarding his current poverty status. Therefore, upon 12 ||reconsideration, Plaintiff's motion to proceed IFP is granted. 13 Ill. CONCLUSION 14 _ For the reasons stated above the Court GRANTS Plaintiff's motion for 15 |}reconsideration [Dkt. 7] and modifies its November 30, 2021 Order as described above. 16 |j Plaintiff is permitted to prosecute this action without being required to prepay fees or costs 17 without being required to post security. The Clerk of the Court shall file □□□□□□□□□□ 18 ||Complaint without prepayment of the filing fee, issue a summons, and provide Plaintiff 19 || with the summons, certified copies of both this Order and the Complaint, and a blank U.S. 20 21 22 ' See, e.g., Ahmed v. Arizona Dep’t of Transportation, 687 F. App’x 672 (9th Cir. 3 2017) (finding district court abused its discretion by denying IFP application where filing fee was $400 and declaration showed monthly income of $425); Reedom v. Soc. Sec. 24 || Admin., 668 F. App’x 753 (9th Cir. 2016) (finding district court abused its discretion by 5 denying IFP application where filing fee was $400 and declaration showed monthly income of less than $500); Merkley v. Idaho, 617 F. App’x 823, 824 (9th Cir. 2015) (finding district 26 abused its discretion by denying IFP application without adequate “support in the 7 record to conclude that [plaintiff] had access to sufficient funds to pay the court costs and his basic needs’’). 28 1 ||Marshal Form 285. Plaintiff shall complete the U.S. Marshal Form 285 and forward the 2 ||Form 285 and designated copies of this Order and the Complaint to the U.S. Marshal. The 3 ||U.S. Marshal shall serve a summons and a copy of the Complaint on all Defendants as 4 || directed by Plaintiff on the Form 285. All costs of service shall be advanced by the Unitec 5 || States. 6 7 IT IS SO ORDERED. 8 9 Date: 4 ( (22 10 | 11 Hon/Jénsook Ohta 2 United States District Court 13 14 15 16 17 18 19 20 □ 21 22 23 24 25 26 27 28