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Fleming v. United States Air Force

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 7, 2010

MICHAEL DAVID FLEMING, PLAINTIFF,
v.
UNITED STATES AIR FORCE, DEFENDANT.

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

ORDER DENYING (1) MOTION TO PROCEED IN FORMA PAUPERIS (DOC. 3) AND (2) MOTION FOR APPOINTMENT OF COUNSEL (DOC. 2)

On June 7, 2010, Plaintiff Michael David Fleming commenced this action against the United States Air Force. Along with the Complaint, Plaintiff also filed a motion to proceed in forma pauperis ("IFP"), and a motion for appointment of counsel.

For the reasons outlined below, the Court DENIES WITHOUT PREJUDICE Plaintiff's IFP motion (Doc. 3), and DENIES AS MOOT the motion to appoint counsel (Doc. 2).

I. PLAINTIFF'S IFPMOTION

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) ("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 in forma pauperis. 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 Plaintiff has failed to meet the requirements for IFP status under 28 U.S.C. § 1915 because he has not completed several required portions of the IFP application. For instance, Plaintiff has indicated that he is self employed, but failed to state both his business, as well as the amount of his take-home salary or wages. (IFP Mot. [Doc. No. 3], at ¶ 2(a).) Plaintiff has also failed to state the date of his last employment (Id. at ¶ 2(b)), and has failed to indicate the amount of money he has received over the past twelve months in the form of gifts. (Id. at ¶ 3.) Lastly, Plaintiff has stated that he owes debts to certain creditors, but has failed to indicate the amounts owed. (Id. at ¶ 9.) Based on these deficiencies, the Court finds that Plaintiff has not stated the facts as to his poverty with sufficient "particularity, definiteness, and certainty." McQuade, 647 F.2d at 940. As such, the Court finds that Plaintiff is not entitled to proceed IFP.

II. SUA SPONTE REVIEW OF THE COMPLAINT

When a complaint is written by a pro se litigant, as here, pleading rules are relaxed and the complaint is held to a less stringent standard. Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621, 623 (9th Cir. 1988); Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). It is equally settled, however, that "[a] trial court may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim." Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981); Sparling v. Hoffman Const. Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988); Barsella v. United States, 135 F.R.D. 64, 66 (S.D.N.Y. 1991) (policy requiring courts to liberally construe pro se complaints "does not mandate that a court sustain every pro se complaint even if it is incoherent, rambling, and unreadable").

Additionally, Federal Rule of Civil Procedure 8(a)(2) requires a complaint to set forth "(1) a short and plaint statement of the grounds for the court's jurisdiction...; [¶] (2) ... the claim showing that the pleader is entitled to relief; and [¶] (3) a demand for the relief sought...." The Rule also requires that each claim be "simple, concise, and direct." Fed. R. Civ. P. 8(e)(2). These rules ensure that a complaint gives fair notice to defendants and states the elements of the claim plainly and succinctly. Jones v. Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984). Where a complaint contains nothing more than conclusory allegations, unsupported by facts, it fails to comply with Rule 8. Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977).

Here, although the Complaint is concise -- comprised of a single paragraph -- Plaintiff has failed to identify the basis for the Court's jurisdiction, as well as the laws the Defendant is alleged to have violated. The Complaint simply alleges that Air Force jets are spraying a mix of barium, aluminum and "other ingredients" as part of a "program called 'Stratus-pheric Aerosol Geo-engineering,' which is now said to be used for 'global warming.'" (Compl., p.1.) This allegation does not provide notice to Defendant regarding the law(s) allegedly violated, the damage(s) Plaintiff allegedly sustained, or why jurisdiction and venue are appropriate in this Court.

III. CONCLUSION & ORDER

For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE Plaintiff's motion to proceed IFP (Doc. 3) and DISMISSES the Complaint with leave to amend. Plaintiff shall have until August 6, 2010 to reinstate this case by (1) paying the $350 filing fee or submitting an amended IFP motion, and (2) filing a First Amended Complaint. Plaintiff is advised that failure to meet either of these requirements may cause the termination of his case without further leave to amend. Additionally, Plaintiff is further cautioned that the First Amended Complaint should address the deficiencies discussed above that exist in the current Complaint.

In light of the foregoing, Plaintiff's motion to appoint counsel is DENIED as moot (Doc. 2).

IT IS SO ORDERED.

20100707

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