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Wynn v. State, Department of Justice

United States District Court, Ninth Circuit

July 1, 2013

GEORGE LIVELL WYNN, Plaintiff,
v.
STATE OF CALIFORNIA; DEPARTMENT OF JUSTICE; OFFICE OF THE ATTORNEY GENERAL KAMAL D. HARRIS, Defendants.

ORDER: DENYING MOTION TO PROCEED IN FORMA PAUPERIS; [Doc. No. 2] DENYING REQUEST FOR APPOINTMENT OF COUNSEL AS MOOT [Doc. No. 3.]

MICHAEL M. ANELLO, District Judge.

Plaintiff George L. Wynn, proceeding pro se, initiated this action by filing a complaint against Defendants the State of California, Department of Justice, and Office of the Attorney General Kamal D. Harris[1] ("Defendants"). [Doc. No. 1.] Although the precise nature of Plaintiff's claim is unclear, he appears to challenge the constitutionality of California Penal Code section 290.5. Plaintiff contemporaneously filed a motion for leave to proceed in forma pauperis ("IFP") [Doc. No. 2], and a motion to appoint counsel. [Doc. No. 3.]

MOTION TO PROCEED IFP

A party instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400.[2] See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). "To proceed in forma pauperis is a privilege not a right." Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965).

Plaintiff's affidavit states he is employed, but fails to state the amount of take-home salary he receives each pay period. [Doc. No. 2 at 2.] Plaintiff states he receives $198.00 in food stamps each month. He indicates that he has no checking or savings account and that he does not own an automobile. [ Id. ] Plaintiff also indicates he has several financial obligations, including $42, 000 in student loans, $85, 000 in child support payments, and over $7, 000 in other debts. [ Id. at 2-3.] Finally, Plaintiff states that he has an unidentifiable asset worth $936.00. [ Id. at 3.]

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). But "the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or 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). Here, the Court finds Plaintiff's affidavit is incomplete and does not adequately demonstrate that he is unable to pay the fees required to maintain this action. Specifically, Plaintiff does not indicate his take-home salary or detail his net income compared to his monthly expenditures and ongoing debts and obligations. Thus, Plaintiff's submission does not demonstrate that he lacks the financial resources or assets to pay the costs of commencing this action.

Accordingly, the Court DENIES without prejudice Plaintiff's motion to proceed IFP. [Doc. No. 2.] Within twenty days of the date of this Order, Plaintiff shall either: (a) pay the requisite $400 filing fee, or (b) file a renewed motion for IFP containing additional information regarding whether his living expenses would objectively prevent him from paying the costs of commencing this action. If Plaintiff fails to timely submit payment or a renewed motion for IFP, the Court will dismiss Plaintiff's complaint without prejudice.

Lastly, as indicated above, Plaintiff also submitted a request for appointment of counsel. In light of the Court's ruling on the IFP motion, the Court DENIES this request as moot.

IT IS SO ORDERED.


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