O. v. Connor

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 AELLIS O., Case No.: 22-CV-200 JLS (WVG) 11 Plaintiff, ORDER DENYING MOTION TO 12 v. PROCEED IN FORMA PAUPERIS 13 KELLI MARIE CONNOR; JILL LEUER; and GOOGLE LLC, (ECF No. 2) 14 Defendants. 15 16 17 Presently before the Court is Plaintiff Aellis O.’s Motion to Proceed in Forma 18 Pauperis (“IFP”) (“IFP Mot.,” ECF No. 2). Plaintiff, proceeding pro se, filed a complaint 19 against Kelli Marie Connor, Jill Leuer, and Google LLC on February 11, 2022. See ECF 20 Nos. 1, 2. For the reasons set forth below, the Court DENIES Plaintiff’s IFP Motion. 21 LEGAL STANDARD 22 All parties instituting a civil action, suit, or proceeding in a district court of the 23 United States, other than a petition for writ of habeas corpus, must pay a filing fee. 28 24 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee only 25 if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)(1). Section 26 1915(a)(1) provides: 27 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or 28 proceeding . . . without prepayment of fees or security therefor, 1 balyl aas pseertss osnu cwhh [op esrusbomn]i tps oasns easfsfiedsa tvhiat tt hthaet ipnecrlsuodne iss a u sntaabtelem teon pt aoyf 2 such fees or give security therefor. 3 4 As section 1915(a)(1) does not itself define what constitutes insufficient assets to warrant 5 IFP status, the determination of indigency falls within the district court’s discretion. See 6 Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 1915 typically 7 requires the reviewing court to exercise its sound discretion in determining whether the 8 affiant has satisfied the statute’s requirement of indigency.”), reversed on other grounds 9 by 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient where 10 it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 11 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont 12 de Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely destitute to 13 obtain benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 14 1960). “Nevertheless, a plaintiff seeking IFP status must allege poverty ‘with some 15 particularity, definiteness[,] and certainty.’” Escobedo, 787 F.3d at 1234. 16 ANALYSIS 17 Plaintiff has not paid the $402 filing fee required to maintain a civil action in this 18 District and instead moves to proceed IFP. Plaintiff submits a form affidavit of assets to 19 support his IFP Motion. See generally IFP Mot. 20 In his Application to Proceed in District Court Without Prepaying Fees or Costs, 21 Plaintiff attests that he earns a total monthly income of $0. IFP Mot. at 1. Plaintiff claims 22 he is self employed as a photographer, but his business has “taken a dramatic downturn 23 since July 2021” such that he is “effectively unemployed.” Id. Plaintiff claims that he 24 previously earned an average of $2,000 to $3,000 per photography session and scheduled 25 three or more sessions per month, which resulted in an estimated monthly income between 26 $6,000 and $9,000. See id. However, Plaintiff claims his business has “declined steadily 27 beginning August 2021 to a threshold below that of [his] monthly rent and operating 28 expenses[.]” Id. Plaintiff attests that his “income for 2022 to date is negative several 1 thousand dollars[.]” Id. He claims monthly expenses of $2600 for rent, $235 for phone 2 and utilities, $175 for professional memberships, $500 for food, and $100 transportation, 3 resulting in total monthly expenses of approximately $3,610. Id. at 2. Plaintiff claims he 4 has $200 in cash or in a bank account, and he has no assets of value. Id. Plaintiff also 5 attests that he has no debts or financial obligations. Id. 6 Plaintiff, however, fails to answer every question on the IFP Affidavit. When asked 7 whether he received any income in the last twelve months from a pension, annuity, or life 8 insurance payments, Plaintiff left the question blank. Id. at 1. In light of Plaintiff’s failure 9 to complete the IFP Affidavit in its entirety, the Court finds that Plaintiff does not allege 10 poverty with particularity, definiteness, or certainty; therefore, he is not entitled to proceed 11 IFP. Plaintiff’s incomplete IFP Affidavit and unknown financial status alone warrant 12 denial of his request to proceed IFP, for section 1915(a)(1) requires that Plaintiff attest to 13 “all assets [he] possesses.” 28 U.S.C. § 1915(a)(1) (emphasis added). 14 Additionally, the financial information to which Plaintiff does attest does not 15 adequately explain how he continues to pay his $3,610 monthly expenses when he claims 16 he has no monthly income. Although Plaintiff attests that his photography business has 17 declined, he does not explain how he pays his monthly expenses when he has no assets and 18 only $200 in a bank account. Additionally, Plaintiff claims he has no debts or financial 19 obligations. In light of Plaintiff’s inconsistent and incomplete attestations, the Court 20 cannot glean whether Plaintiff is able to pay the filing fee and “still afford the necessities 21 of life.” Escobedo, 787 F.3d at 1234. 22 Plaintiff’s inconsistent and incomplete attestations do not demonstrate with 23 “particularity, definiteness, or certainty” that Plaintiff lacks the financial resources to pay 24 the $402 filing fee. Accordingly, the Court DENIES Plaintiff’s IFP Motion. This denial, 25 however, is WITHOUT PREJUDICE to Plaintiff refiling an IFP motion that accounts for 26 the above-noted discrepancies and demonstrates that Plaintiff is not abusing the IFP 27 /// 28 /// 1 process, which could result in dismissal of this action or other sanctions. See Newsome v. 2 Loterzstain, No. 2:19-cv-0307-JAM-EFB P, 2020 WL 4501813, at *3 (E.D. Cal. Aug. 5, 3 2020) (“[C]ourts routinely dismiss with prejudice cases upon finding that the plaintiff has 4 intentionally withheld information that may have disqualified plaintiff from obtaining IFP 5 status or has otherwise manipulated his finances to make it appear that a plaintiff is poorer 6 than he actually is[.]”); Tuck v. Capitol One Bank, Case No.: 3:17-cv-01555-BEN-AGS, 7 2017 WL 6547739, at *3 (S.D. Cal. Dec. 20, 2017) (“[E]ven if Plaintiff’s Amended IFP 8 Application, viewed in isolation, might otherwise justify allowing him to proceed IFP, IFP 9 ‘status is a privilege which may be denied when abused.’” (quoting Toodle v. Jones, 02:09- 10 CV-0944, 2009 WL 2230704, at *1 (W.D. Pa. July 23, 2009))). The Court reminds 11 Plaintiff that he signed the IFP Affidavit under penalty of perjury that it is true and correct 12 (IFP Mot. at 2) and will likewise sign any renewed IFP motion under penalty of perjury. 13 See Tuck, 2017 WL 6547739, at *3 (“Plaintiff is further remined that an IFP application is 14 made under penalty of perjury, and any false statements may result in a dismissal of claims 15 . . . .”). 16 CONCLUSION 17 Based on the foregoing, the Court DENIES WITHOUT PREJUDICE Plaintiff 18 Motion to Proceed IFP (ECF No. 2). No later than thirty (30) days from the date of this 19 Order, Plaintiff shall either: (1) pay the $402 filing fee required to maintain an action is 20 this District; or (2) file a renewed motion to proceed IFP that accounts for the discrepancies 21 identified by the Court and demonstrates that Plaintiff is not abusing the IFP process.2 22 Plaintiff is hereby on notice that if he fails to pay the $402 filing fee or file a renewed 23 24 1 Not only did Plaintiff sign the IFP Affidavit “under penalty of perjury,” but with an “understand[ing] 25 that a false statement may result in a dismissal of [his] claims.” IFP Mot. at 2. 26 2 The Court reminds Plaintiff that, should he refile an IFP motion that sufficiently assures the Court that he is entitled to IFP status and is not abusing the IFP process, his Complaint will undergo mandatory pre- 27 answer screening pursuant to 28 U.S.C. § 1915(e)(2)(B). Under section 1915(e)(2)(B), the Court must 28 sua sponte dismiss the Complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, 1 || IFP motion within thirty (30) days from the date of this Order, the Court will dismiss this 2 ||action without prejudice. 3 IT IS SO ORDERED. 4 ||Dated: February 18, 2022 tt 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28