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Stewart v. City of San Diego

United States District Court, Ninth Circuit

October 16, 2013

JUSTIN STEWART, Plaintiff,
v.
CITY OF SAN DIEGO, et al., Defendants.

ORDER: (1) DENYING IN FORMA PAUPERIS MOTION [DOC. 3], AND (2) DISMISSING COMPLAINT WITHOUT PREJUDICE

M. JAMES LORENZ, District Judge.

On October 11, 2013, Plaintiff Justin Stewart commenced this action. (Doc. 1.) On the same day, he filed a motion seeking in forma pauperis ("IFP") status. (Doc. 3.) For the reasons outlined below, the Court DENIES Plaintiff's IFP motion.

The determination of indigency falls within the district court's discretion. Cal. 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 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, 841 F.Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that a district court did not abuse its discretion in requiring a partial fee payment from a prisoner who had a $14.61 monthly salary and who received $110 per month from family). Moreover, " in forma pauperis status may be acquired and lost during the course of litigation." Wilson v. Dir. of Div. of Adult Insts., 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F.Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma pauperis should be required to pay his $120 filing fee out of a $900 settlement). In addition, 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 Plaintiff's application, the Court finds that Plaintiff fails to meet 28 U.S.C. § 1915's requirements for IFP status. The Court notes that Plaintiff only takes home $160 a week. (IFP Mot. at ¶ 2 [Doc. 3].) However, he does not indicate any expenses or debts. ( Id. at ¶¶ 8-9.) Consequently, the Court cannot find that requiring Plaintiff to pay the court filing fees would impair his ability to obtain the necessities of life. Adkins, 335 U.S. at 339.

Accordingly, the Court DENIES Plaintiff's application to proceed in forma pauperis (Doc. 3), and DISMISSES the complaint WITHOUT PREJUDICE. Pursuant to this order, Plaintiff is granted 60 days' leave to pay the filing fee required to maintain this action pursuant to 28 U.S.C. § 1914, or to submit additional documentation regarding her financial status. IF PLAINTIFF CHOOSES TO FILE ADDITIONAL INFORMATION REGARDING HER POVERTY, SHE MUST ATTACH A COPY OF THIS ORDER.

IT IS SO ORDERED.


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