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Franklin v. U.S. Bank National Association

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 28, 2010

TOM FRANKLIN, PLAINTIFF,
v.
U.S. BANK NATIONAL ASSOCIATION, DEFENDANT.

The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER: (1) DENYING IN FORMA (Doc. No. 4) and; (2) DISMISSING LAWSUIT PAUPERIS MOTION (Doc. No. 1)

On May 27, 2010, Plaintiff Tom Franklin ("Plaintiff"), proceeding pro se, re-opened this case by filing an amended motion seeking in forma pauperis ("IFP") status. (Doc. No. 4.) For the reasons outlined below, the Court DENIES Plaintiff's IFP motion and DISMISSES WITHOUT PREJUDICE the lawsuit.

The determination of indigency falls within the district court's discretion. California Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds, 506 U.S. 194 (1993) (holding that "Section 1915 typically requires the reviewing court to exercise its sound discretion in determining whether the affiant has satisfied the statute's requirement of indigency."). It is well-settled that a party need not be completely destitute to proceed informapauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), "an affidavit [of poverty] is sufficient which states that one cannot because of his poverty pay or give security for costs ... and still be able to provide himself and dependents with the necessities of life." Id. at 339. At the same time, however, "the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, ... the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar." Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).

District courts, therefore, tend to reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey, 851 F.Supp. 316, (N.D.Cal. 1994), vacated in part on other grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that district court did not abuse discretion in requiring partial fee payment from prisoner with $14.61 monthly salary and $110 per month from family); Allen v. Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (Plaintiff initially permitted to proceed in forma pauperis, later required to pay $120 filing fee out of $900 settlement proceeds); Ali v. Cuyler, 547 F.Supp. 129, 130 (E.D. Pa. 1982) (informapauperis application denied: "plaintiff possessed savings of $450 and the magistrate correctly determined that this amount was more than sufficient to allow the plaintiff to pay the filing fee in this action."). Moreover, the facts as to the affiant's poverty must be stated "with some particularity, definiteness, and certainty." United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).

Having read and considered the papers submitted, the Court finds that Plaintiff has again failed to meet 28 U.S.C. § 1915's requirements for IFP status. Specifically, the information provided by Plaintiff in support of his IFP motion lacks the "particularity, definiteness, and certainty" that is required by the Ninth Circuit. Id.

For example, when asked to provide the present balance in his checking account, Plaintiff wrote "very little money." (See IFP Mot. at ¶ 4.) Similarly, when asked to list his assets or items of value that he owns, Plaintiff wrote "I have very little." (See IFP Mot. at ¶ 10.) The Court does not doubt Plaintiff's truthfulness. But without the details of the required information, the Court simply can not provide the requested relief. Plaintiff's true economic situation remains unascertainable.

Accordingly, the Court DENIES Plaintiff's application to proceed in forma pauperis without prejudice, and DISMISSES the lawsuit. Plaintiff shall have until June 18, 2010 to reinstate this case by (1) paying the $350 filing fee or (2) submitting an amended IFP application. Plaintiff has now ignored this Court's instructions twice. Should he choose to file another amended IFP application, Plaintiff should be careful to provide all of the required financial information. A failure to do so will cause his case to be terminated without further leave to amend.

IT IS SO ORDERED.

20100528

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