United States District Court, S.D. California
ORDER: (1) GRANTING MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS (ECF NO. 2); (2) DISMISSING ACTION AS
FRIVOLOUS UNDER 28 U.S.C. 1915(E); AND (3) TERMINATING AS
MOOT MOTION TO APPOINT COUNSEL [ECF NOS. 2, 3]
Hon.
Cynthia Bashant United States District Judge
On July
27, 2016, Plaintiff Debbie Baize, proceeding pro se,
filed a handwritten complaint against Defendant Lloyd Burton
Austin asserting he "made false charges of elder abuse
and lied under oath." (ECF No. 1.) On the same day,
Plaintiff also filed a motion seeking leave to proceed in
forma pauperis ("IFP") and a motion to appoint
counsel. (ECF Nos. 2, 3.) For the following reasons, the
Court: (1) GRANTS Plaintiffs IFP motion (ECF
No. 2); (2) DISMISSES this action as
frivolous under 28 U.S.C. 1915(e); and (3) TERMINATES
AS MOOT Plaintiffs motion to appoint counsel (ECF
No. 3).
I.
MOTION FOR LEAVE TO PROCEED IFP
Under
28 U.S.C. § 1915, a litigant who because of indigency is
unable to pay the required fees or security to commence a
legal action may petition the court to proceed without making
such payment. 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),
rev'don 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 IFP. 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 by Olivares v. Marshall, 59 F.3d 109 (9th
Cir. 1995) (finding that the 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., No. CIV S-06-0791, 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). Finally, 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 Plaintiffs application, the Court finds
that Plaintiff meets the requirements in 28 U.S.C. §
1915 for IFP status. Plaintiff is unemployed and receives $1,
054.00 per month in retirement income. (IFP Mot. ¶¶
1, 2.) No other sources of income are listed. (Id.)
Plaintiffs monthly expenses include $650.00 for rent and
$300.00 for medical and dental expenses. (Id. ¶
8.) Plaintiff does not own an automobile, real estate, or any
other significant asset. (Id. ¶ 5.) Under these
circumstances, the Court finds that requiring Plaintiff to
pay the court filing fees would impair her ability to obtain
the necessities of life. See Adkins, 335 U.S. at
339.
In
light of the foregoing, the Court GRANTS Plaintiffs
application for leave to proceed IFP (ECF No. 2).
II.
DISMISSAL UNDER 28 U.S.C. § 1915(e)
Under
28 U.S.C. § 1915(e)(2)(B)(i), the court must dismiss an
action where the plaintiff is proceeding IFP if the court
determines that the action "is frivolous or
malicious." An IFP complaint "is frivolous if it
has 'no arguable basis in fact or law.'"
O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir.
1990) (quotingFranklin v. Murphy, 745 F.2d 1221,
1228 (9th Cir. 1984)). In addition, an IFP complaint
"that merely repeats pending or previously litigated
claims" is subject to dismissal as frivolous. See
Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir.
1995) (quoting Bailey v. Johnson, 846 F.2d 1019,
1021 (5th Cir. 1988)) (construing former version of 28 U.S.C.
§ 1915(d), which then governed dismissal for
frivolousness); see also Franklin v.
Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984) (affirming
dismissal of plaintiffs claims as "frivolous or
malicious" where the plaintiffs four previous actions
concerning the same issue were dismissed for lack of subject
matter jurisdiction).
Here,
the Court finds Plaintiffs Complaint is frivolous because it
merely repeats claims that have been previously dismissed
with prejudice in two actions. Plaintiff alleges Defendant
"made false charges of elder abuse and lied under
oath." (Compl, ECF No. 1.) She seeks to clear her name
of "all false allegations and charges made against [her]
personally" and requests compensation for "false
imprisonment." (Id.) Plaintiff made the same
allegations in a previous action against Austin Burton Lloyd,
who is presumably the same person as Defendant Lloyd Burton
Austin. See Complaint, Baize v. Lloyd, No.
14-CV-02573-BAS(JMA) (S.D. Cal. Oct. 29, 2014), ECF No. 1. In
that case, this Court granted Plaintiff IFP status, but it
dismissed her action without prejudice for lack of subject
matter jurisdiction and for failure to state a claim. Order,
Baize v. Lloyd, No. 14-CV-02573-BAS(JMA) (S.D. Cal.
Nov. 13, 2014), ECF No. 4. Plaintiff amended her complaint,
but the Court again dismissed her action. Baize v.
Lloyd, No. 14-CV-02573-BAS(JMA), 2015 WL 2165293, at *1
(S.D. Cal. May 7, 2015). Next, after Plaintiff amended her
complaint for the final time, the Court dismissed the action
with prejudice for failure to state a claim. Baize v.
Lloyd, No. 14-CV-02573-BAS(JMA), 2015 WL 5040047, at *4
(S.D. Cal. Aug. 26, 2015).
Thereafter,
Plaintiff filed another action against Defendant regarding
the same allegations made in her first action. See
Complaint, Baize v. Austin, 15-cv-02547-LAB(WVG)
(S.D. Cal. Nov. 12, 2015), ECF No. 1. This second action was
similarly dismissed with prejudice after Plaintiff failed to
establish subject matter jurisdiction or explain why the
action was not related to her previous case. Order, Baize
v. Austin, 15-cv-02547-LAB(WVG) (S.D. Cal. Feb. 29,
2016), ECF No. 8.
Based
on the foregoing, the Court finds Plaintiffs Complaint
"merely repeats pending or previously litigated
claims" that were dismissed with prejudice in the two
prior actions described above. See Cato, 70 F.3d at
1105 n.2. Therefore, this action is frivolous, and it must be
dismissed. See id.; 28 U.S.C. §
1915(e)(2)(B)(i); see also Denton, 504 U.S. at 30
(recognizing Congress's concern that "a litigant
whose filing fees and court costs are assumed by the public,
unlike a paying litigant, lacks an economic incentive to
refrain from filing frivolous, malicious, or repetitive
lawsuits").[1]
III.
CONCLUSION
In sum,
the Court GRANTS Plaintiffs motion to
proceed IFP (ECF No. 2). However, the Court also
DISMISSES WITH PREJUDICE this action in its
entirety under 28 U.S.C. § 1915(e)(2)(B)(i) because it
is frivolous. In addition, the Court TERMINATES AS
MOOT ...